Can you Dismiss an Employee for Taking a ‘Sickie’?

In American businesses, ‘duvet days’ exist for employees. These are an allocated number of days for when an employee does not wish to come into work they do not have to, without risk of dismissal. Duvet days are typically in addition to their normal holiday allowance.

However, with no such luxury in the UK, it is always a concern for employers that their employees may take the occasional ‘sickie’ when in fact they are not genuinely ill.Can you dismiss an employee for pulling a sickie

With the average employee taking 9.1 days of sick leave per annum, the importance of proper absence management procedures cannot be underestimated.

Can Employers dismiss Employees for taking ‘Sickies’?

You may suspect an employee of taking liberties when it comes to sick days and absences but it is not always easy to prove that their absences are not legitimate.

A recent Employment Appeal Tribunal case may now provide employers with the legal backing they require to dismiss an employee for being illegitimately off sick.

In Ajaj vs Metroline West Ltd, the EAT found that the company was within its rights to dismiss Mr Ajaj after they carried out private monitoring of him when he was signed off sick following his claim that a fall at work resulted in him being unable to attend work for a long period of time.

During the period he was monitored, the company discovered that Mr Ajaj’s ability did not coincide with what he had originally told them and they decided Mr Ajaj’s actions amounted to potential gross misconduct and commenced disciplinary proceedings.

The EAT supported the company’s decision to dismiss Mr Ajaj for gross misconduct based on the fact that the company genuinely believed that Mr Ajaj had claimed sick pay by fraudulently indicating to be sick when he was not. He had distorted his ability to attend work at review meetings and with the occupational health doctors, exaggerating his condition in a deliberate attempt to defraud the company out of sick pay.

Whilst, in this case, Mr Ajaj was off for a long period of time, there is nothing to state that a shorter spell of absence would not fall under the same category of ‘fundamental breach of trust and confidence’.

Notwithstanding this decision, employers should continue to assess each case on its individual merits.  For example, an employee with a clean record and 12 years’ service who takes a questionable sick day for one day, may not amount to a fair dismissal in law.

It is advisable that employers ensure any decision made is based on a genuine belief, on reasonable grounds and following a reasonable investigation, as per the precedent that was set by the Burchell vs BHS case.Dismiss

This does not mean that employers would always be expected to incur costs hiring expensive private investigators. However, monitoring social media accounts and building evidence may assist with presenting a stronger case for a gross misconduct dismissal.

Advice on Employee Absence and Sick Leave

If you feel that your business would benefit from expert advice and guidance on how to handle employee absences, sick leave policies and disciplinary action, then do not hesitate to contact PeoplePointHR.

Our experienced HR advisors and employment law specialists are on hand to offer impartial and professional advice to businesses throughout the UK.