Pulling (one too many) “sickies”– how to deal with malingering employees?

A malingering bus driver at Metroline claimed to be sicker than he really was. It is true that Mr Ajaj suffered an injury at work, following which Occupational Health deemed him unfit for work for some time. However, his employer became suspicious as it believed that there was an inconsistency in the reporting of his injuries and began to investigate Mr Ajaj’s conduct during his sick leave. Damning surveillance evidence exposed Mr Ajaj’s exaggeration and he was disciplined and dismissed on the grounds that he had made a false claim for sick pay, misrepresented his ability to attend work and made a false claim for injury at work.

Mr Ajaj brought an unfair dismissal claim which the ET allowed, but the EAT disagreed. The Regional Employment Judge specifically stated that an employee who “pulls a sickie” is representing that he is unable to attend work by reason of sickness’. If that person is not sick (the distinction between a “sickie” and a sick day being that on a sick day you are actually sick) then it amounts ‘to dishonesty and to fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship’.

Sickness absences may cause real problems to businesses, particularly to those with a smaller work force.   A disproportionate level of disruption on an organisation’s performance that can be caused by short-term absence compared to single instances of prolonged absence. In reality this is common knowledge to most managers and this case usefully confirms that “pulling a sickie” is a dishonesty offence that could warrant dismissal. You therefore ought to be mindful of your employees’ conduct during sick leave. The last thing you want is an employee who is signed off work to be posting pictures of him or her having a great time in Istanbul on Instagram, which BBC Radio One Breakfast show presenter Nick “Grimmy” Grimshaw learned the hard way.

If you suspect that an employee is ‘pulling a sickie’, as Mr Ajaj’s case shows, this is potentially grounds for a dismissal or disciplinary action.  However, to take this action, whether sickness absence is genuine needs to be properly investigated and allegations need to be addressed in accordance with disciplinary procedures.  Having good contracts and policies covering sickness absence may also provide an effective deterrent against malingering employees choosing to take unwarranted ‘sickies’.

Lawspeed can help:-

For all employers Lawspeed offers a single point of contact to access agency worker supply chain audit services as well as employment and engagement contracts of all kinds, policies, employee management and legal support. https://www.lawspeed.com/services/recruitment-contracts/

To blow (or not blow) the whistle?
Gender Pay Gap reporting requirements could be extended to agency workers