While lamenting the passing of sugary drinks, one of the two great loves of my life along with employment law, I came across something interesting which had nothing at all to do with Baron Osborne’s red briefcase.  UK's Employment Appeal Tribunal had a far more crucial issue on its plate… the sickie.

Employers across the UK will be familiar with the sickie. A few months ago, research by YouGov suggested that 19% of British workers have pulled one in the last 12 months. If you have not come across this term before, I have borrowed a definition from an earlier post – “the difference between a sickie and a sick day is that on a sick day you are actually sick”.  And now courtesy of Mrs Justice Simler in the Employment Appeal Tribunal we have the concluding part of that description: “….., whereas on a sickie you are just dishonest”.

In Metroline West v. Ajaj released last week, the EAT overturned a Tribunal decision regarding what I would call a serious sickie – a multiple day illness or injury, rather than the single day hangover version.

Mr Ajaj had an accident in the bathroom (stop sniggering at the back – he slipped on water in the toilets at the Respondent’s depot in Willesden) and claimed to be too injured to work as a bus driver because he could scarcely walk and could not sit for long periods as the job would require. Metroline did not believe it was quite as bad as all that and Ajaj was therefore subjected to covert surveillance around the time of each of his fitness review meetings there.

Ajaj produced a doctor’s note supporting his claimed degree of incapacity and blithely reported his continued inability to walk for more than 5 or 6 minutes or to carrying any material weight. When pressed on his daily activities, he first claimed that he could not even shop but at a later meeting noted that he could now “shop for light stuff”, i.e. “chocolate, paper, sandwich”.  However the covert surveillance filmed Ajaj carrying shopping bags far too big to be chocolate or a newspaper or a sandwich.  Put on the spot over this footage, Ajaj parried in a flash – the bags were filled with bread, and were therefore still ‘light shopping’.

Personally, I might have added some further colour to the excuse, possibly suggesting that my groceries consisted of something more than just several cubic feet of bread. Top marks for artistic endeavour, all the same.  Unimpressed, Metroline sacked him.

The Tribunal at first instance found in Ajaj’s favour. However, the EAT decided that it had done so by asking the wrong questions. The ET had focused on the Claimant’s capability for carrying out his role and concluded that although Ajaj had clearly lied about his ability to walk and carry things, there was no evidence that he had similarly exaggerated his difficulties staying seated for long periods, the aspect of his injury which he said prevented him from returning to work.  His dismissal for misrepresenting his fitness to work was therefore unfair.

The EAT said that the Tribunal should have queried whether Metroline had reasonable grounds to believe that Ajaj had misrepresented his injury.  On the facts, it had indeed been reasonable for it to believe this and therefore to dismiss him summarily on conduct grounds.  The dismissal was therefore fair.

The EAT also took the opportunity to make a fairly stark point about pulling a sickie. “If that person is not sick, that seems… to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.”

Lessons for employers

This case may not be particularly ground-breaking, but it is still worth bearing in mind for employers. If one in five of the workforce is indeed pulling sickies, there are a lot of days being lost to hangovers, sports events and general bone-idleness.  If you have evidence that gives you a reasonable belief that an employee is misrepresenting, or even exaggerating, sickness in order to be absent from work, you have good scope for a gross misconduct dismissal.

Remember that the key question is the element of dishonesty – whether it is relevant to the claimed incapacity is a separate question. So even if your employee does have some level of incapacity keeping him off work, a lie about it (even a gratuitous lie unnecessary to justify the absence) will still constitute grounds to dismiss.

But keep in mind two points:

• according to one of the doctors involved in this case there is a recognised tendency among patients to exaggerate the severity of their complaints, but subconsciously out of an anxiety to get their point across to the doctor, not deliberately (so not all misrepresentation is dishonest); and

• surveillance is a blunt tool and not useful in all cases, in particular mental health issues and where the severity of a condition can vary sharply from time to time. Reliance on it alone to generate a reasonable belief that your employee is pulling a sickie can be risky.