It’s a 1-1 draw between employers and employees
By Merrill April, Memery Crystal LLP
The Employment Appeal Tribunal (“EAT”) could be accused of presiding over a “game of two halves” in two recent decisions relating to employee sickness absence. Team Employer will be pleased by the decision in Metroline West Ltd v Ajaj that “pulling a sickie” can be a ground for dishonest gross misconduct. However, in Private Medical Intermediaries v Hodkinson the EAT found that an employer’s correspondence with an employee on sick leave amounted to constructive unfair dismissal, showing the importance of careful management of sickness absence.
Mr Ajaj, a bus driver, claimed to have experienced a fall at work resulting in a prolonged period of absence. Metroline West became suspicious about the genuineness of the nature and extent of Mr Ajaj’s injuries, and between March and April 2014, arranged for covert surveillance of him. Having reviewed the surveillance footage, Metroline West concluded that Mr Ajaj’s abilities shown in the footage were not consistent with what he had reported both to his employer and to the occupational health adviser. Metroline West suspended then dismissed Mr Ajaj, who claimed unfair dismissal.
The Tribunal held that the dismissal was unfair. However, on appeal the EAT supported Metroline West’s decision to dismiss Mr Ajaj for gross misconduct, based on the Tribunal’s finding it had genuinely believed Mr Ajaj had:
- Claimed sick pay by fraudulently representing to be sick when he was not;
- Misrepresented his ability to attend work and meet with his occupational health advisor; and
- Exaggerated his condition, or deliberately attempted to defraud Metroline West with an exaggerated claim of injury at work.
The Judge commented 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 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.”
While this decision will be seen as a warning to any employee considering a cheeky day off, employers should not jump to conclusions without understanding the full nature of the alleged sickness. This is particularly important in cases of absence for mental reasons. If there is a genuine concern that an employee is “pulling a sickie”, an employer will need to carry out a reasonable investigation of the circumstances to establish a fair dismissal. Whilst many employers may not go so far as covert recording, publicly available social media posts and updates can be accessed to build up a picture of what the employee is doing whilst on sick leave. In addition, employers must always follow a fair procedure in any disciplinary proceedings to avoid any claims of unfair dismissal.
Private Medical Intermediaries Ltd v Hodkinson
Miss Hodkinson was off sick from work with what she said was work-related stress and anxiety caused by bullying and intimidation by managers. The employer wrote to her and asked if she wanted to raise a grievance, to which she responded that she was “in no fit state to communicate”. The employer wrote again, proposing a meeting with her. It offered flexibility on location, but went on to set out details of six areas of performance concern that it wanted to discuss with her. Miss Hodkinson resigned in response to this letter and brought various disability discrimination claims and a claim for constructive unfair dismissal.
The Tribunal found that Miss Hodkinson had been unfairly dismissed and that she had suffered harassment and discrimination on grounds of disability. The EAT overturned the findings of discrimination, but did however, uphold the finding of constructive unfair dismissal.
On the face of it this is concerning for employers – does it mean that employers should avoid all contact in case it amounts to a fundamental breach of contract? No, the key decision in this case rested on the fact that the areas of performance concerns raised were not serious and did not need to be dealt with at that stage; it was subsequently discovered that most of the issues had already been dealt with. Furthermore, this employee had stated she could not communicate at all, not even about her own grievance.
We have set out below some tips to consider prior to contacting an employee on sick leave:
- It is important to keep in contact with an employee off sick, particularly when off for a significant period, as part of a fair procedure in managing the absence (unless medical evidence clearly suggests this is inappropriate). However, employers need to be careful not to contact the employee too often, leading to the employee feeling harassed.
- However, employers should think carefully before contacting an employee about outstanding and new grievance or disciplinary proceedings. If a serious issue arises whilst an employee is off sick, employers may contact the employee but must consider: (i) is it important that the issue be dealt with now rather than when the employee is back at work (perhaps because of the need to fulfil a duty of care to other colleagues or preserve evidence); and (ii) what is the best way to contact the employee.
- If there are outstanding grievance and disciplinary proceedings, employers should not assume that they should both be dealt with concurrently or in the same manner. This is particularly the case where the employee is off sick for work-related stress or similar.
- Where an employee is claiming work-related stress, it may be argued that it is in the interests of that employee for the employer to deal with the grievance/disciplinary. This is supported by guidance by the Royal College of Physicians that attending a meeting may help deal with the root cause. However, this generic proposition can be overturned in a particular case by the employee’s medical team. Employers are therefore recommended to seek advice from the relevant health professional as to whether the employee is capable of dealing with the grievance/disciplinary rather than making that decision itself.
The average number of sick days per employee is 4.4 days per year. Many employers offer Company sick pay in excess of 5 days. One way of managing sickness is to keep company sick pay down whilst recognising that in a serious case, particularly involving allegations of work-related stress and bullying, a holistic approach is required, taking into consideration an employer’s duty of care to provide a safe system of work. As events during Euro 2016 in France showed, “injury time” or “stoppage time” is not always a negative thing if handled correctly.
Merrill AprilMemery Crystal LLP, London, United Kingdom
T: +44 20 7242 59 05
Merrill is Head of Employment at Memery Crystal. She advises on contractual and other employment issues that arise throughout the employment relationship and on transactions, especially in relation to TUPE. She frequently works with owner managers setting up their employment and HR structures, drafting contracts and policies and working with HR and in-house lawyers in delivering the HR/employment law service to their business. She also represents in the High Court in relation to contractual disputes and business protection.
Published: October 2016 l Photo: Colourbox.de - Kiyoshi Takahase Segundo