Written by Marie-Clare Swallow, Senior HR Consultant

The five ‘potentially fair reasons for dismissal’ under the ERA are:

  • Misconduct
  • Capability and qualifications
  • Redundancy
  • Breach of statutory restriction; and
  • “Some other substantial reason” also known as a “SOSR”

If an employee has more than two years’ employment and their sickness absence is interfering with their ability to do their job, an employer may be entitled to dismiss that employee.  In the case of a lengthy period of absence, this dismissal will likely come under the second point above, due to lack of capability to do the job.

For frequent, short term periods of absence, dismissal may fall under the SOSR reason above.  Even if the illnesses are genuine, if the absences are having a detrimental effect on the organisation and the performance of the employee, this dismissal may well be fair.

However, there are instances involving absences from work that do not fall under either capability or SOSR, those being acts of misconduct.  This could be for failing to follow the company’s absence notification procedures for example or as has been highlighted in a recent Employment Appeal Tribunal case, “pulling a sickie” can be classed as a fundamental breach of contract justifying a gross misconduct dismissal.

The case involved Ajaj v Metroline West Limited.  Mr Ajav was a bus driver who was signed off work as sick following an injury caused by slipping over. He provided a GP’s note to his employer confirming his injuries but his employer suspected that the description of his injuries was exaggerated and began surveillance which showed the employee carrying out a wider range of activities than he had represented to medical advisors and his employer. The employee was suspended and then dismissed for gross misconduct on the basis that he had made false claims for sick pay and injury at work and misrepresented his ability to attend work.

The Employment Tribunal dealt with the case as a capability issue and found that Metroline had failed to take into account the fact that his health was improving and the misrepresentation of the effect of his injuries related to his ability to walk rather than to his ability to sit and perform the duties of a bus driver.

Metroline appealed and the EAT held that the dismissal had been lawful.  They focussed on the dishonesty of Mr Ajav.  It was not disputed that he was injured and arguably, unfit for work but it was the lie about the extent of the injury which was the determining factor in the finding of a fundamental breach of contract.

This means that where there are concerns about an employee feigning illness, an employer will have good scope for a gross misconduct dismissal. The Tribunal will look at whether there were reasonable grounds for belief in the misconduct and whether a reasonable investigation was carried out.

As an employer, if you are concerned that an employee is malingering or indeed any aspect of an employee’s attendance, please do not hesitate to contact the advice line for support and guidance.