Faked Sickness…Football Flu

The Euro’s are on! How can you miss it. However, as an employer you may be concerned if members of staff call in sick at the time of a big match – could this possibly be a fake sickness?

Is a faked sickness breach of the employment contract? A recent case was heard by the Employment Appeal Tribunal on Metroline v Ajaj 2015. Ajaj had been employed by Metroline as a bus driver. In Feb 2014, Ajaj reported he has slipped on water in the toiler and suffered a injury. Ajaj was signed off sick but Metroline was concerned over the alleged injuries so they arranged for covert surveillance of Ajaj when he attended one of its sites for a sickness absence review.

The footage shows Ajaj’s level of mobility was inconsistent with his sickness claims, Ajaj was doing things he insisted was beyond his physical capabilities. Ajaj was dismissed after following the disciplinary proeceedings.

Ajaj claimed unfair dismissal. Ajaj initially won at the tribunal but this was appealed by Metroline where it was concluded where an employee claims to be unable to work due to sickness yet they are not actually ill or not as sick as they claim to be, their actions amount to dishonesty. This repudiates the employer/employee relationship and can be viewed as a fundamental breach of contract and therefore would allow the employer to terminate the employment.

However, you must not jump to conclusions or act on suspicion! Before any termination of employment takes place for a fundamental breach of contact you must conduct a reasonable investigation and be able to show that the employee has made a dishonest representation about their condition. You don’t need to go to the extreme of covert surveillance like the above case but you can rely on medical evidence or social media posts.

 

Authors: Roxanne Bradley

Published: 23 Jun 2016

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