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Faking injury to claim sick pay

Posted by TonyBrownEmploymentSolicitor on April 12, 2016

How should the fairness of a dismissal of an employee for deliberately exaggerating the extent of his illness be assessed?

In particular, should fairness be assessed according to principles applying to misconduct dismissals, or do ‘capability’ considerations apply, i.e, is the employee capable of work based on his real (rather than exaggerated) symptoms?

In the next case, the EAT made it clear that the principal reason for dismissal of a malingering employee is conduct, not capability, and the procedures to be followed are those applying to misconduct.

In that case, the Claimant was employed as a bus driver. He went sick after allegedly slipping in water on the floor of the workplace.

His employer became suspicious about the genuineness of the extent of the Claimant’s injuries, and arranged for covert surveillance of him. 

At a sickness absence review meeting, when asked whether he felt able to return to work, the Claimant said that could not drive and did not know when he would be able to drive again, that his walking was only about 30 per cent better, sitting had improved a bit but was still not comfortable; dressing and washing were improved, shoes were difficult, and, when asked about shopping and lifting, he said he was not able to do this at all unless it was very light.

 At that point, the Claimant was confronted with the surveillance footage after which the interviewing manager told the Claimant that he believed that the level of the Claimant’s activity in the footage was inconsistent with the Claimant’s own reporting of his injuries.

The Claimant was suspended pending a disciplinary hearing to consider allegations that he had made a false claim for sick pay and also that he had misrepresented his inability to attend work. 

 At the disciplinary hearing, the employer decided that the allegations were made out and the Claimant was dismissed with immediate effect for gross misconduct.

The Claimant brought a tribunal claim for unfair dismissal.

The tribunal concluded that the employer had reasonable grounds that would support a conclusion that the Claimant had exaggerated the effects of an injury but only in terms of his ability to walk.

According to the medical evidence, the issue that prevented the Claimant’s return to work was sitting rather than walking. There was no evidence that the Claimant had exaggerated his inability to carry out the duties of a bus driver, which required sitting in one position for long periods. A reasonable employer would have regard to the specific duties that an employee was required to perform in determining his capability to work. 

Accordingly, the dismissal was unfair.

Allowing the employer’s appeal, and setting aside the finding of unfair dismissal, the EAT stated that the tribunal had repeatedly asked the wrong question to do with the Claimant’s ability to perform his job as a bus driver sitting for long periods, which would have been relevant to a capability dismissal but was irrelevant to a conduct dismissal for deliberate exaggeration of his injury and misleading his employer and its occupational health doctor.  Had the tribunal assessed the Claimant’s conduct by reference to those reasons the only conclusion available was that the Claimant’s dismissal was fair.

Comment

Is it ever OK to pull a sickie?

Although it is common (possibly as many as a third of UK workers admit to faking illness to avoid work), the EAT in this case made it quite clear that 'pulling a sickie' is dishonest and a fundamental breach of an employee’s contract.

During argument before the EAT, it was suggested on behalf of the Claimant that an employee who falsely asserts that he is unfit to work would not necessarily be guilty of gross misconduct. The EAT rejected this, saying that an employee who "pulls a sickie" is representing that he is unable to attend work by reason of sickness. If that person is not sick, that amounts to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship. 

Disclaimer

This article is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This article is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.