With great aplomb, in Metroline West v Ajaj, the EAT has held that ‘pulling a sickie’ is dishonest and a fundamental breach of contract.
Mr Ajaj was a bus driver. He wrongly claimed to be more sick than he was, and surveillance evidence proved him to be exaggerating. The employment tribunal held that fairness of dismissal should be assessed based on traditional ‘capability’ considerations, ie when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms.
The EAT disagreed. It held (at para 54) that an employee who ‘pulls a sickie’ is dishonest and in fundamental breach of contract. The principal reason for dismissal of a malingering employee is conduct, not capability, and the procedures to be followed are the traditional British Home Stores v Burchell ones.