Tips for employers: how do you manage sickness absences?

Posted on March 25, 2016

Have you had employees “pull a sickie” on you?

Recent YouGov research suggests that almost a fifth of British workers have ‘pulled a sickie’ in the last year.

The flip side – and a relief for employers - is that 80% of workers will drag themselves to work when they feel a little off-colour. But what can employers do about employees who persistently absent themselves from their duties without good reason?

A recent Employment Appeal Tribunal (EAT) decision has come to employers’ assistance: Metroline West Ltd v Mr I Ajaj.

What happened in the Metroline v Ajaj case?

Mr Ajaj worked as a bus driver for Metroline West Ltd. He slipped at work and took sick leave following this accident. Metroline thought Mr Ajaj was exaggerating the effect of his injuries and alleged that he had made a false claim for sick pay, misrepresented his ability to work and falsely claimed injury at work.

Metrolink produced medical opinions and surveillance footage that had been taken covertly in support of these allegations and consequently dismissed Mr Ajaj for gross misconduct for lying about his sickness.

Mr Ajaj appealed and an Employment Tribunal concluded that Metrolink had unfairly dismissed him - in part because Metrolink had not gone through the right procedures. In particular, the EAT did not think Metrolink had carried out a reasonable investigation of two of the allegations and there were some differences in how the allegations had been made to Mr Ajaj and how they were actually concluded.

Metrolink then appealed arguing that the Tribunal had not applied the correct legal tests for determining unfair dismissal. The EAT had to consider complex legal issues relating to wrongful and unfair dismissal but eventually found in Metrolink’s favour. In reaching the conclusion that Metrolink’s dismissal of Mr Ajaj was fair in the circumstances and should be upheld, the EAT judge gave the following words of comfort to employers:

“An employee [who] “pulls a sickie” is representing [to his employer] that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.” (See paragraph 44 of the judgment.)

In other words, pulling a sickie can be fair grounds for dismissal.

Welcome news for employers

This case is welcome news for employers affected by employees pulling regular sickies - especially those with smaller businesses: it sets a precedent that such employees can be fairly dismissed.

There is however, a significant proviso: the employer must follow a fair procedure.

Tips for handling suspected ‘sickies’

- Thoroughly research the facts.

- If necessary, seek expert, medical advice on the causes of the sick leave.

- Ensure the procedure you follow is fair – and seek legal advice if in doubt about how to handle the situation fairly. (Legal advice at this stage is far more cost effective than an unfair dismissal tribunal hearing later*.)

- Ensure your decision is reasonable in all the circumstances. Does it really justify dismissal?

- Record the steps you take in reaching your conclusions.

How do you manage sickness absence?

This case is a good reminder of the importance of office policies governing such issues as employee sickness and office absence. Such a policy will set out what an employee should do if too sick to work and what an employer can reasonably do in given timescales to check up on the cause of sickness.

Are your office policies up to date? Do they deal with sick leave?

To seek advice about employees on sick leave or to discuss your employment policies, please contact contact Susan Mayall on 0161 684 6948 or email susan.mayall@pearsonlegal.co.uk.

* A footnote on the costs of the proceedings

Mr Ajaj was ordered to pay costs after the appeal. However, employers should note that the costs order took into account Mr Ajaj’s financial position and by no means covered Metrolink’s actual costs.

Case report: Metroline West Ltd v Mr I Ajaj

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.