Two recent court decisions have highlighted issues surrounding sickness absence, which provide some very useful guidance for employers when dealing with this issue. The first of these concerned the contractual status of absence procedures and the second a situation in which an employee was exaggerating the severity of an injury.
Absence policy incorporated in contract
In Department of Transport v Sparks and Others, the Court of Appeal upheld a finding that procedures in a staff handbook regarding absence management had been incorporated into the employees’ contracts of employment.
The Department of Transport Staff Handbook provided that, in terms of attendance management, there was a set number of days absence which may trigger a formal procedure under the policy. This varied from 8 days to 21 days between different Department agencies. The handbook, which was divided into Parts A and B, provided that all terms which were apt for incorporation were to be incorporated in the employees’ contracts. Part A was expressly incorporated and Part B was not to be. Part A contained the absence management procedure.
Following unsuccessful negotiations regarding standardising the absence procedure, the Department for Transport informed the trade unions that it would impose a new standardised procedure, which provided that formal absence procedure would be initiated after 5 days absence, or 3 occasions within a 12 month period.
Seven employees went to the High Court, and it was held that the absence procedure had been incorporated into their contracts and could therefore not be unilaterally changed to the detriment of the employees (the detriment being that they would be subject to formal action after a shorter period of absence under the proposed new policy).
This decision has wider implications than simply absence management procedures and the Court affirmed guidance on how it should be established whether policies and procedures formed part of the employees’ contracts, with a key factor being the precise wording of the documents in any given case. This emphasises that employers should be wary of how their contracts and policies are drafted, particularly with reference to which procedures are to be incorporated into a contract of employment (given that such contractual terms cannot then be unilaterally changed) and which are to be non-contractual.
Employee exaggerating injury
In Metroline West Ltd v Ajaj the Employment Appeal Tribunal confirmed that falsely taking a day off work for sickness absence, or “pulling a sickie”, can be an act of dishonesty which may amount to gross misconduct.
In this particular case, Mr Ajaj, a bus driver, claimed to have fallen at work and injured himself which resulted in a prolonged period of sickness absence. His employer grew suspicious about his claims regarding the severity of his injuries and arranged for covert surveillance of his activities to take place. These recordings appeared to show that Mr Ajaj’s conduct during his period of absence was not consistent with his reporting of his injuries, both to his employer and to occupational health. Metroline commenced disciplinary proceedings on the basis that this was potentially gross misconduct.
The company concluded that Mr Ajaj had obtained sick pay by claiming to be sick when he was not, misrepresented his ability to attend work and exaggerated his condition or deliberately attempted to defraud the company with a claim of an injury at work that was exaggerated. They considered these actions to be gross misconduct and Mr Ajaj was dismissed.
The Tribunal held that Mr Ajaj had been unfairly dismissed because, while the covert recordings showed he was freely able to walk, this was not evidence that he was capable of carrying out his contractual duties. Metroline appealed on the basis that Mr Ajaj’s capability to perform his role was not relevant to the issue of misconduct for which he had been dismissed. The EAT agreed with this position and held that the dismissal was fair. Regardless of whether Mr Ajaj was capable of driving, there was evidence that he had misled his employer as to the extent of his injury and their decision to dismiss him for misconduct was fair.
This decision will be welcomed by employers in confirming that falsely claiming to be sick, or exaggerating an illness or injury, is a breach of trust which can potentially be gross misconduct and grounds for disciplinary action. However, as with any misconduct, a reasonable process and investigation must be taken and at tribunal an employer would still have to satisfy the usual “Burchell” test – that they had a genuine belief in the employee’s guilt which is held on reasonable grounds and after conducting a reasonable investigation.
Therefore, while this decision may provide some comfort in dealing with problem employees, account should be taken of all the relevant circumstances and employers should avoid jumping to conclusions. For example, an employee who calls in claiming to have severe food poisoning and is found to have gone out that day may be differentiated from an employee who is off for a prolonged period with medical evidence that they are genuinely unfit for work. An increasingly common way for employees to be caught faking illness in on social media accounts. Again, care should be taken not to jump to conclusions. For example, where an employee is off sick suffering from a stress or anxiety related issue, doing activities outside of work or going on holiday to relax may be reasonable and part of their recovery. In relation to this, particular care should be taken where an employee may have a disability, where unfounded accusations of exaggerating or ‘making it up’ could amount to disability discrimination. In any case, while disciplinary action may be justifiable, if there is reason to question the genuineness of an employee’s sickness or the evidence they provide, reasonable steps should be taken to investigate before making accusations.
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