Can calling in sick be considered gross misconduct?
Posted on 8th January 2021 at 13:00
Judicial guidance - gross misconduct
Judicial guidance in relation to dismissing for misconduct was given in the well known case BHS Stores v Burchell  ICR303 which became known as the ‘Burchell’ test. Was there a genuine belief, based on reasonable grounds after a reasonable investigation, of the guilt of the employee of the misconduct at the time?
The Burchell test is an objective test about the "reason" for dismissal not the reasonableness of the dismissal, and the burden of proof is on the employer. A tribunal must determine whether the employer’s decision to dismiss because of that misconduct falls within the range of reasonable responses. It is not up to the tribunal to decide whether it would have come to the same decision as the employer. This was re affirmed in the recent case of Metroline West Ltd v Ajaj UKEAT/0185/15/RN, The Employment Appeals Tribunal had to decide whether the tribunal was right to find that an employer had unfairly dismissed an employee who had lied about the extent of his injuries, but was unable to perform his duties.
Mr Ajaj was a bus driver who had been dismissed by the Respondent for gross misconduct, because he falsified and exaggerating his sickness leave during the course of his employment. His employer arranged for Surveillance evidence, which proved that Mr Ajaj had been lying about the seriousness of his illness. Mr Ajaj was dismissed and his appeal was rejected, therefore he brought a claim for unfair dismissal.
The Employment Tribunal, in the first instance, accepted that the Respondent had a potentially fair reason to dismiss Mr. Ajaj but it should have been a capability process and not a conduct one that was followed, as the Respondent failed to look at the actual symptoms, not just the exaggerated ones and therefore assess his actual abilities to perform his job. The Employment Tribunal therefore held that the dismissal was unfair
The Employment Appeal Tribunal upheld the Respondent’s appeal, finding that the Employment Tribunal had muddled capability and conduct dismissal procedure. In assessing the fairness of the dismissal, the Employment Tribunal should have considered whether the Respondent’s decision fell within the range of reasonable responses, and instead, the Tribunal had appeared to substitute its own mindset for that of the Respondent. This was a question of misconduct, not capability: had the Claimant misrepresented his injury and its effects? Whether or not he was capable of doing his job was irrelevant in the circumstances.
The Employment Appeal Tribunal made reference to an employee claiming to be sick and unable to attend work, when in fact they are not sick, amounts to ‘’dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.”
The above decision from the EAT serves as a warning to both employers and employees, reminding employers of their requirements to laid out in the Burchell test, of genuine belief based on reasonable grounds after a reasonable investigation, and employees that ‘pulling a sickie’ is in fact potential grounds for gross misconduct.
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