For plenty of employees the thought of ‘pulling a sickie’ is an accepted practice. The ‘morning after the night before’, tickets to The Open, England v Wales, even a sense of entitlement to some sick day ‘holiday’ is common, as employees test their acting skills convincing employers they are ill.
However, employees will now have to be aware that the consequences of ‘pulling a sickie’ could ultimately lead to the loss of employment as the latest employment tribunal ruling indicates.
The Employment Appeal Tribunal judge in Metroline West Ltd v Ajaj has stated: “An employee “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship”. In other words, ‘pulling a sickie’ could potentially result in dismissal for gross misconduct.
The facts of the above case may not be your normal ‘pulling a sickie situation but the view of the judge in the Employment Appeal Tribunal will be echoed by many employers, and employees should take heed.
However, before clubs begin dismissing employees whom they suspect have been “pulling a sickie” it is worth remembering that the legal test for unfair dismissal has not changed. An employer will still need to satisfy the requirements of misconduct as laid out in BHS v Burchell (1978).
And whilst the covert recording, used by Metroline West, will not be suitable for most clubs they will still need to show that there are reasonable grounds for believing the employee to be guilty of misconduct following a reasonable investigation. Just thinking the employee did not sound unwell over the phone will not be enough. Social media posts, status updates and ‘check-in’ at various locations of where and how an employee spends their sick day will all help. Clubs will need to make sure that their social media policies (see GCMA Library Documents 10018 & 10019) are current and allow for this sort of information to be accessed and relied upon.
If a club has a particular problem with employees ‘pulling sickies’ then it might be argued that there is a culture of acceptance. The club may then need to consider managing sickness absence differently before taking action against employees. Otherwise, any dismissal risks being unreasonable and could be challenged.