In this news item, we take a look at two recent cases relating to absence, one in which the tribunal erred when it treated a conduct issue as one of capability and one which underlines the need to proceed with caution when an employee is absent with work-related stress, anxiety or depression.
Ajaj v Metroline West
In this case, Mr Ajaj, a bus driver, suffered a slip and fall accident at his employer’s premises and was off work. He saw Metroline’s occupational health doctor shortly after the accident who confirmed he was not fit for bus driving at that time. Metroline subsequently arranged sickness absence meetings with Mr Ajaj but due to suspicions about the nature and extent of his injuries, they engaged covert surveillance around the time of the three review meetings and found the surveillance reports and footage to be inconsistent with what he reported about his fitness. For example, he claimed that he could walk for no more than 5 or 6 minutes at a time but the footage showed him walking for much longer than that.
Metroline sent the surveillance reports and, subsequently, the footage to the occupational health doctor who confirmed that what was observed was inconsistent with what Mr Ajaj was reporting. He was invited to attend a disciplinary meeting to address three allegations: he had made a false claim for sick pay, he had misrepresented his ability to attend work and he had made a false claim of an injury at work. Mr Ajaj was dismissed for gross misconduct.
The tribunal found he had been unfairly dismissed on the basis that, while the employer had a potentially fair reason to dismiss in that Mr Ajaj had exaggerated his injury and its effects, a reasonable employer would have looked at the specific duties Mr Ajaj was required to perform and there was no evidence that he was able to sit for the period required to carry out his bus driving duties. It was found that he had contributed to his dismissal to the extent of 35%.
The Employment Appeal Tribunal (EAT) disagreed and concluded that the tribunal appeared to have substituted its own decision for that of the employer and, having found that Mr Ajaj had exaggerated his condition such that he misled the occupational health doctor and Metroline it was perverse to find that they did not have reasonable grounds to dismiss. The tribunal wrongly assessed the issue on the basis of Mr Ajaj’s capability as opposed to his conduct which was the reason for his dismissal.
The EAT judge made it clear that, if an employee “pulls a sickie”, he “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”.
Employers should not view this as a licence to dismiss any employee they suspect of malingering; there must always be a thorough investigation and a fair process. It can be easy to jump to conclusions – for example, on the basis of social media postings – but that alone may not support a finding that the employee has dishonestly misrepresented their condition. Additionally, while covert surveillance may form part of a fair investigation, it should be borne in mind that it is a somewhat primitive tool which will generally need to be interpreted by a medical professional to support its conclusions.
Private Medicine Intermediaries & Ors v Hodkinson
This case involved an employer’s contact with an employee who was absent with work-related stress. The EAT upheld the tribunal’s decision that the employer had breached the employment contract such that the employee had been constructively dismissed when it wrote to her while she was absent about concerns with her employment.
At first glance this would appear to support the commonly held perception that it is risky for employers to contact employees who are absent with work-related stress or anxiety. However, it is important to note that, in this case, the contact with the employee was, at least in part, about specific management concerns which were found not to be urgent, some of which had already been dealt with and not about the absence itself.
Consequently, while care should be taken before contacting employees in such circumstances, normal contact relating to the ongoing absence, obtaining medical information and prospects for returning to work should not amount to a breach of contract unless the employer has medical information advising that such contact will be detrimental. Before contacting an employee who is off with a work-related condition, an assessment should be made as to whether that contact is necessary or whether it can await the employee’s return.