Is pulling a sickie a breach of conduct?

18 March 2016

It may come as no surprise that the Employment Appeal Tribunal has held that pulling a sickie is not only dishonest but also a fundamental breach of conduct.

With thanks to Daniel Barnett’s employment law bulletin for providing a summary of this case.

In Metroline West v Ajaj Mr Ajaj was a bus driver. He wrongly claimed to be more sick than he was, and surveillance evidence proved him to be exaggerating. The employment tribunal held that fairness of dismissal should be assessed based on traditional 'capability' considerations, i.e. when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms.

The Employment Appeal Tribunal (EAT) disagreed. It held (at para 54) that an employee who 'pulls a sickie' is dishonest and in fundamental breach of contract. The principal reason for dismissal of a malingering employee is conduct, not capability, and the procedures to be followed are the traditional British Home Stores v Burchell ones.

CIPP comment

British Home Stores v Burchell is a significant employment law case from 1978 and is where the ‘Burchell Test‘ comes from. This case set out some of the principles that an employment tribunal should follow in deciding whether a dismissal for misconduct is fair or unfair. To establish fairness in dismissal, the employer must demonstrate:

  • Belief employee is guilty of misconduct
  • Belief based upon reasonable grounds; and
  • At time of belief, it carried out as much investigation as reasonable.