The issue of sickness absence has been the focus of a recent case in the Employment Appeal Tribunal, and the notion of 'pulling a sickie' was at the centre of the case.

The recent case of Ajaj v Metroline West Ltd (UKEAT/9185/15/RN) involved an employee suffering an accident at work that resulted in an extended period of absence from work. During the absence, the employer grew suspicious and organised recordings of the employee to take place. These recordings showed that the employee's mobility contradicted the testimony he was giving to the employer and to occupational health. Due to these findings, disciplinary proceedings were started for gross negligence. The employee was ultimately dismissed.

On appeal, the decision to dismiss the employee for gross misconduct was supported by the EAT. The EAT sided with the view that the employer believed that the employee had falsely represented his sickness, his inability to work to both review meetings and occupational meetings and that the employee had exaggerated his claim of sickness or had intentionally attempted using this claim to defraud the company.

Whilst this sounds like positive news for employers, employers still need to beware that the legal test for unfair dismissal remains the same. The requirements for unfair dismissal decided in BHS v Burchell [1978] IRLR 379 still need to be met. These are:

  • Had the employer actually believed that the employee was guilty of misconduct,
  • Had the employer had reasonable grounds on which to base that belief, and
  • Had the employer carried out as much investigation as was reasonable in the circumstances of the case.

A recent survey by Timeware (UK) found that, in a survey of 1,000 British employees, 90 percent did not find absenteeism to be an issue in the workplace. The survey also found that sickness is the predominant excuse for absenteeism. However, 20 percent of respondents blamed childcare issues for absenteeism and 17 percent blamed relationship issues.

Whilst this is not simply a case of taking a day off and pulling the classic 'sickie', this new judgment is likely to pave the way for other companies to take stronger action against employees who falsely represent their sickness. A report by ACAS highlighted that absenteeism costs the economy £17 million a year on average, meaning that taking a day off work for illegitimate reasons ultimately culminates into a large overall loss.