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"Just go off sick..."

Discussion in 'Workplace dilemmas' started by GLsghost, Apr 14, 2016.

  1. GLsghost

    GLsghost Star commenter

    @TheoGriff, among others, has warned repeatedly in these forums of the danger of avoiding work by going off sick, if it is not genuine.

    A recent case, which went to the EAT confirms that an employee may be dismissed for gross misconduct for this as a breach of the implied duty for trust and confidence. Employers are also warned that, if there is a trend for this in the workplace, they should first announce clear direction on the way the sickness policy will be interpreted in future, or it could be argued that 'pulling a sickie' is tolerated.

    This summary is from Littleton chambers, who represented the employer in this case:

    "PULLING A SICKIE JUST GOT MORE DANGEROUS - LYDIA BANERJEE ON AJAJ V METROLINE WEST LTD

    Pulling a sickie just got more dangerous - Lydia Banerjee on Ajaj v Metroline West Ltd.

    For many the idea of ‘pulling a sickie’ is neither shocking nor worthy of news. A sore head from the night before, tickets to an exciting event, even a sense of entitlement to some sick days each year are familiar rationales offered as employees put on their best ‘sick voice’ and croak their apologies down the phone to their employer.

    Employees beware.

    The EAT in Ajaj v Metroline West Ltd (UKEAT/0185/15/RN) has found "An employee "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”. In other words ‘pulling a sickie’ is potential grounds for gross misconduct.

    In the case in question Mr Ajaj claimed to have experienced a fall at work resulting in a prolonged period of absence. Over the course of the absence management process the employer grew suspicious of Mr Ajaj’s claims in relation to the extent of his injuries and arranged for covert recordings of him to take place. In the recordings Mr Ajaj’s movements and actions seemed to contradict the account that he was giving to both his employer and occupational health. Metroline West Ltd decided that Mr Ajaj’s actions amounted to potential gross misconduct and commenced disciplinary proceedings.

    The EAT supported Metroline West Ltd’s decision to dismiss Mr Ajaj for gross misconduct based on the findings of the Tribunal that the company genuinely believed that Mr Ajaj had (i) obtained or claimed sick pay by fraudulently representing to be sick when he was not; (ii) misrepresenting his ability to attend work at review meetings and with the occupational health doctor and (iii) exaggerated his condition or deliberately attempted to defraud the company with a claim of injury at work that was exaggerated. The Tribunal also concluded that these matters related to conduct giving a potentially fair reason for dismissal. From this point the Tribunal moved into error substituting their view for that of the employer and giving rise to the issues in the appeal.

    The facts of the case may not be a classic "pulling a sickie” scenario but the view of Mrs Justice Simler in the EAT will be repeated by many an employer and employees ought to be wary.

    That said before employers begin dismissing employees whom they suspect have been "pulling a sickie” it is worth remembering that the legal test for unfair dismissal has not changed. An employer will still need to satisfy the requirements of BHS v Burchell [1978] IRLR 379.

    Covert recording will not be an appropriate step for many businesses but an employer will need to show that they have reasonable grounds for believing the employee to be guilty of the misconduct alleged following a reasonable investigation. Simply thinking someone didn’t sound ill on the phone is unlikely to be enough. Facebook posts, status updates and ‘check-in’ at various locations may well be part of the picture of where and how an employee spends their sick day. Employers will need to make sure that their social media policies are up to date and allow for this sort of information to be accessed and relied upon.

    If a business has a particular problem with employees taking sick days improperly then it might be argued that there is a culture of tolerance towards such conduct. In this situation an employer may need to consider communicating a new approach to sickness absence prior to taking action against employees. To do otherwise risks any dismissal being outwith the band of reasonable responses.

    So the health warning of Ajaj v Metroline West Ltd is for both employers and employees.


    Metroline West Ltd were represented at the EAT by Adam Solomon of Littleton Chambers."

    What I think is worth noting is that a 'fair investigation' by the employer to show the sickness is not genuine may include trawling social media - FB and the like - and, dare I say, the TES forums. If a poster acts on suggestions from others to go sick when they are not, they do so and are identified by their employer from posts here, this may lead directly to dismissal for gross misconduct.

    You can't say you weren't warned!
     
  2. grumpydogwoman

    grumpydogwoman Star commenter

    Good. Going off sick when you're not ill is cheating. It's unfair. It's an abuse.
     
  3. Compassman

    Compassman Star commenter

    Agreed, but many teachers soldier on for too long before taking time off.

    As an example, in many schools workload is spiralling out of control and staff end up with sleep deprivation, headaches and just feel stressed.

    I doubt many self-certificate as 'stressed' but write some other excuse tummy bug, flu etc.

    Maybe more should self-certificate as stressed and it may demonstrate how big the problem is.
     
  4. Caligraphy

    Caligraphy Occasional commenter

    I agree that pulling a sickie' is totally unacceptable. I do, however, think that threads like this would terrify certain teachers who are already upset, stressed and anxious and feeling guilty. Any worker should only go off sick when they are sick, but there are posts on here several times a week that say that teachers are pushing themselves beyond endurance before taking the sick leave THAT THEY ARE ENTITLED to.
    As teachers, we should be more concerned about the changes in our employment T&C when employed by academies that now say that many of us will increasingly not be entitled to the benefits that we have built up over many years if we change our jobs.
     
  5. TheoGriff

    TheoGriff Star commenter

    .

    There are indeed several points to note here.

    * Someone who is too unwell to work, or is contagious or infectious, should not go to work. Do not struggle in.

    * Someone who is able to work should not claim to be unwell to get a day off when they fancy it.

    * Someone who has been shortlisted for a job should not go to the interview secretly by claiming to be sick.

    What excuse can I give for going to interview?

    I am, as @GLsghost has noted, rather taken aback by the posters who blithely say "Just go off sick" in response to others who are trying to work through a dilemma. :(

    Best wishes

    .
     
  6. Caligraphy

    Caligraphy Occasional commenter

    Imho, I believe, that it is better to take a couple of days off to regroup and rest rather than to let feelings of stress, worry, fear, pressure, anxiety, upset etc. escalate to full blown WRS or depression. I don't think my post advocated going of sick unless an individual was really poorly, and I am talking about stress related illness. No doubt I'll get a telling off for commenting.
     
  7. mrs-badger

    mrs-badger Occasional commenter

    I suppose my worry is what about those conditions that can vary?

    (This is slightly embarrassing!) I fell over at an exercise class last month, after doing a kick and the force meant my other leg slipped and i went down quite hard!

    I've really hurt my lower back/coccyx and it's extremely uncomfortable when I first stand up but is okay when I'm moving around a bit. I was in a lot of pain initially and took two days off.

    People might have thought I was okay and I really wasn't - but outwardly I was.

    Where do we draw the line? I'm not defending shirking by the way but there are a lot of "hidden" illnesses and shouldn't a doctor be the person who decides, not a company?
     
  8. GLsghost

    GLsghost Star commenter

    Absolutely. There is no problem at all for anyone who is genuinely sick, whether they have been certified by their GP or have self-certified, in the first few days.

    A problem only has the potential to arise in the example of let's say someone who has been told they face informal or formal capability and who then elects to try to side-step that by going off sick when they are actually not. If the person is suffering from a stress-related illness, there is no problem. If, however, someone is taking the proverbial, seen out and about, perhaps on holiday or otherwise engaging in activities that are clearly not conducive to being absent with the claimed illness, then the employer would be within his rights to carry out a fair investigation, potentially leading to dismissal for gross misconduct, if the person has been found to have been fraudulently claiming illness.

    If sickness absence and the treatment of the illness is certified by the doctor - there is no problem. If the doctor's advice is that a person is suffering from stress-related illness and the person is positively encouraged to get out into fresh air, play golf or whatever - and that is medical advice - there is no problem.

    Dismissal for gross misconduct is for p***-takers - not for the genuinely sick.
     
  9. Caligraphy

    Caligraphy Occasional commenter

    Quite!
     
  10. grumpydogwoman

    grumpydogwoman Star commenter

    Sickness INCLUDES WRS!!!!!

    Sickness is mental as well as physical. Teachers do soldier on for far too long. Agreed. They are also sometimes dishonest about the reason.

    Remember the chap in the example was not KNOWN to have had a fall at work. He claimed to have had a fall. And then there was abundant evidence to back up the view that he was skiving.

    I don't think any stressed teacher has anything to fear. The teachers on TES don't bemoan their fate and then admit to going out later in the evening for a knees-up. They are all hiding at home in mortal despair.

    But I don't see why an employer shouldn't be vigilant. It's enormously bad for morale when colleagues cheat the system.
     
  11. grumpydogwoman

    grumpydogwoman Star commenter

    No employer is going to try to push a case where the grounds are spurious. It needs to be pretty clear-cut.
     
    Schoolbird and agathamorse like this.
  12. JohnJCazorla

    JohnJCazorla Star commenter

    In the case given above Ajaj was also lying to a doctor which makes it incredibly clear-cut. There's a large difference between that and the "Feeling **** so I won't go in today" dilemma that most posters here seem to experience.

    Also the work-related injury cited by Ajaj gives the employer a fear that compensation will have to be paid.
     
    wanet and grumpydogwoman like this.
  13. GLsghost

    GLsghost Star commenter

    "Feeling **** so I won't go in today" is illness.

    "I'm fed up because I have been put on capability...sod that I'm just going to go off sick for the rest of the term" is not - unless the person is genuinely ill, of course.
     
  14. Scintillant

    Scintillant Star commenter

    Everyone knows that just "having a sickie" if you're absolutely fine, is totally wrong, and there are procedures in place to deal with it.

    If you feel **** because you're overworked and both mentally and physically tired and stressed - as may be the case when put on trumped-up capability, then you might be ill even though you don't realise it. If people feel like this, then they need to see a doctor, and not go into work due to the fear that they might end up in a lot trouble.
     
  15. grumpydogwoman

    grumpydogwoman Star commenter

    No, you're right.

    Teachers are pretty much above that kind of thing anyway.

    Not sure that other workers are quite so punctilious. My OH is having trouble with one guy* at the moment. She just listens to the absurd excuse and documents it. No point having it out with him. Just a case of amassing the evidence. He's a chancer. They all hate him.


    *IT-type fella, NOT a teacher
     
    sabrinakat likes this.
  16. mrs-badger

    mrs-badger Occasional commenter

    I'm just not sure I totally understand.

    If someone is suffering from WRS, for example, then chances are they will look and appear fine when not in work?

    I'm not obviously trying to be obtuse there:) but I'm just aware that is one example of many where someone might appear fine.
     
    nomorenails likes this.
  17. wanet

    wanet Star commenter

    Not sure I agree with that, it is often very obvious if you look closely enough.
     
  18. opalfeet

    opalfeet Occasional commenter

    "Feeling **** so I won't go in today" is illness.

    "I'm fed up because I have been put on capability...sod that I'm just going to go off sick for the rest of the term" is not - unless the person is genuinely ill, of course.

    Is it really that simple ghosty?

    Have to say I agree with Scintillant. I just want to say that over my many years of teaching, I have dragged myself in through numerous illnesses (when I know others would have definitely called in ill) - no I'm not a martyr, but sometimes you just create more work for yourself by having time off and have to play catch up when you return. I even (stupidly) went in when I had no voice and continued to strain it. When I faced the depths of my stupidity, I allowed myself a day off. Needless to say my sick record is exemplary.

    However, I am guilty of phoning in ill when I could just not face going in, I was highly stressed and just could not physically face the day- it was the first time I had experienced such a feeling. I didn't phone up and tell them this though, I said something else. I went back to work the following day (may have been a Friday- I can't even remember now)

    Cue.. what a bad teacher I am and how I should have been sacked. I could be identified on here, but if someone wishes to sack me for gross misconduct for this- more fool them. They will lose a highly committed, conscientious and competent teacher.

    Well.. you have to tell yourself how good you are every now and then :)
     
  19. nomorenails

    nomorenails New commenter

    Feeling like a fraud when taking a day off for illness, regular teacher problem, that's why we burn out so often. Too much implied guilt/martyrdom from others when we do doesn't help. If I didn't meet people for coffee every now and then when off after a breakdown, I would never have left the house. It raised eyebrows with a couple of people, but that's their problem rather than mine. I went away a couple of times, was made to by loved ones, it helped. This thread jarred a bit today, because I'm having to have the conversation with work about still being ill. They asked if I'm well enough to be there, they don't think so, and neither do I deep down, but I'm pushing on as long as I can, because if I go now, I'm not going back and as this is my last year, I'd like to finish right.
     
  20. GLsghost

    GLsghost Star commenter

    I think you misunderstand, @opalfeet. If you are so exhausted that you cannot face going into work, then you are surely ill and legitimately off sick?

    The EAT decision relates specifically to people who deliberately tell their employer that they are sick, when they are actually not. This is fraudulent. We do have posters on WD who encourage people with workplace dilemmas to play sick and not bother to go back, to avoid the dilemma. Such action potentially risks disciplinary action from the employer - and I have explained how difficult someone's position might become if their employer learns that they have boasted about taking such an approach on social media, or in the TES forums.
     
    Schoolbird likes this.

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