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Dealing with dishonest claims of sickness absence

31st March 2016

In a recent case the Employment Appeals Tribunal (EAT) has given a ruling that will be of particular interest to employers that have problems with staff taking time of work due to sickness in somewhat dubious circumstances.

The case of Metroline West v Ajaj concerned a bus drive . He claimed to be more sick than he actually was. His employer used surveillance evidence to establish this, which proved that he had been exaggerating his level of illness to his employer. The employee was dismissed for misconduct, on the basis that he had been dishonest to his employer in how he had taken time off due to sickness.

At the Employment Tribunal the claimant won his case against the employer, as the Employment Tribunal concluded that the question of fairness in the case should have been looked at as a capability issue, rather than one of misconduct, in other words the employer should have considered when the individual would have been able to return to work based on his real level of illness (rather than the exaggerated level he had claimed to his employer).

In the EAT the decision of the Employment Tribunal on the approach taken by the Tribunal to the fairness of the dismissal was rejected. Instead the EAT took the view that the individual had clearly acted dishonestly in "pulling a sickie" when he was not as ill as he claimed. On that basis it was ruled that it was proper to deal with the case as one of alleged misconduct, not capability.

This case may give some comfort for employers in considering how to deal with those cases concerning employees that appear to have exaggerated claims of illness resulting in sickness absences.

It should be noted that it is not always appropriate for employers to use surveillance methods for gathering evidence on employees that are off work due to illness. It may well be the case that the employer in this particular case had good reasons to suspect the particular individual of exaggerating the illness he was suffering, and so justify some level of surveillance. It is also important for employers to note that just because an employee is unable to work due to illness does not always mean that the employee must be confined to the sickbed, and that the employee is clearly lying or exaggerating their illness if they venture out their house. Similarly employers need to careful as to how and when they use surveillance methods, and ensure that the methods used are proportionate and relevant, and not excessively intrusive.

The case also highlights the need to ensure that any use of surveillance should be addressed in suitable staff policies, and that employers have and use sickness absence policies and monitor sickness absence absences fairly and consistently.

If you have any questions or need help in dealing with the issues raised in this case do not hesitate to contact us at Hallett Employment Law Services Ltd.   

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