Managing sickness absence is not always straightforward
According to the CIPD Absence Management Survey 2015, the average level of employee absence increased slightly compared to the previous year from 6.6 days to 6.9 days per employee per year. Public sector absence however, increased by almost a day. The reported average cost of absence per employee was £554 a year, increasing to £789 in the public sector and £639 in the non-profit sector. But there are other costs too. Workloads increase for those employees who may be covering a colleague's sickness absence, performance and customer satisfaction levels may fall and staff morale is often affected.
Managing sickness absence effectively is essential for employers but it is not always straightforward as can be seen from two recent decisions of the EAT. The challenge for employers is supporting those who are genuinely ill and dealing with those who abuse the system - the issue considered in our first case summary.
Pulling a "sickie" resulted in dismissal for gross misconduct
Have you ever had the Monday blues? Have you had a series of late nights recently? If you were tempted to take a "sickie" you should think twice following the EAT's decision in the case Metroline West v Ajaj. The EAT overturned the Employment Tribunal's decision and found that an employee who exaggerated the effects of an injury to fraudulently take sick leave had fundamentally breached the implied term of trust and confidence and could be dismissed for gross misconduct.
Mr Ajaj had worked as a bus driver for Metroline West for around 10 years. On 26 February 2014, he went on sick leave after he reported slipping on water on the floor of the toilets. On 5 March 2014, the Occupational Health adviser concluded that Mr Ajaj was not fit for driving duties and he was referred for physiotherapy. Mr Ajaj said that because of the pain he couldn't get up or sit down quickly, he could only walk slowly, he couldn't shop and he had difficulties in dressing. Metroline West became suspicious about the genuineness of the nature and extent of the injuries and arranged covert surveillance of Mr Ajaj. This showed him carrying big bags of shopping and walking in excess of five minutes, activities that Mr Ajaj claimed his injuries prevented him from doing. A disciplinary hearing was arranged to consider three specific allegations: that Mr Ajaj had made a false claim for sick pay, that he had misrepresented his ability to attend work and that he had made a false claim of an injury at work.
Mr Ajaj was subsequently dismissed for gross misconduct and appealed that decision. The internal appeal panel considered that Mr Ajaj had substantially exaggerated the degree of his incapacity and even went so far as to conclude that it was probable that Mr Ajaj had not suffered an injury at work at all and was therefore falsely claiming to be injured. Mr Ajaj brought claims for unfair and wrongful dismissal.
Employment Tribunal and EAT proceedings
The Employment Tribunal considered the principles established in British Home Stores Ltd v Burchell. Did Metroline West have reasonable grounds for its belief in the alleged misconduct having conducted a reasonable investigation, and did it act within the range of reasonable responses? Whilst the Employment Tribunal concluded that Metroline West had genuine reasons for dismissal, it found that a reasonable employer in this situation would have had regard to the specific duties that Mr Ajaj was required to perform in determining his actual capability. There was no evidence that Mr Ajaj was actually capable of carrying out the duties of a driver and the dismissal was both unfair and wrongful. However, the Employment Tribunal was of the view that Mr Ajaj had exaggerated the extent of his injuries and this was culpable and misleading. It held that Mr Ajaj had contributed to his dismissal by 35%.
Metroline West successfully appealed to the EAT. The Employment Tribunal Judge had incorrectly assessed Mr Ajaj's misconduct by reference to irrelevant capability considerations and whether Mr Ajaj was able to do his job. Rather, the question that should have been asked was whether or not Metroline West reasonably believed Mr Ajaj was guilty of gross misconduct after conducting a reasonable investigation. In addition, the EAT found that the Employment Tribunal Judge had substituted his view for that of Metroline West. Finally, having found that Mr Ajaj had exaggerated the effects of his injury and that this contributed to his dismissal, the EAT held that it was perverse for the Employment Tribunal Judge to hold that the dismissal was unfair and wrongful.
In setting aside the Employment Tribunal decision, the EAT concluded that an employee who "pulls a sickie" is representing that he is unable to attend work by reason of sickness. If that person is not sick, it "amounts to dishonesty and to a fundamental breach of the trust and confidence, that is at the heart of the employer/employee relationship".
Take care when corresponding with employees on sick leave
The issue in the second EAT decision illustrates the problems that can arise when maintaining contact with an employee who is off sick. In Private Medicine Intermediaries Ltd v Hodkinson, the EAT upheld the Employment Tribunal's decision that writing to an employee to raise non-urgent concerns whilst they were off sick with work-related stress constituted constructive dismissal and breached the implied term of mutual trust and confidence. However, the EAT set aside the Employment Tribunal's finding that the employer's letter amounted to an act of disability-related harassment.
Miss Hodkinson was disabled and suffered from thyroid dysfunction and cardiac arrhythmia. She was off work in the summer of 2013 and following advice from Occupational Health, her employer (PMI) made adjustments to her working conditions on her return to work in September 2013, which included reduced hours. However, two of the recommendations of Occupational Health were not implemented. These recommendations were (i) to have weekly meetings between Miss Hodkinson and her line manager Mr Green (to review and consider her progress) and (ii) for PMI to conduct a formal review following a review by Miss Hodkinson's GP. On 22 October 2013, Miss Hodkinson went off sick again, this time with work-related depression and anxiety. She alleged workplace bullying and intimidation by Mr Green and the Managing Director, Mr Munro. A couple of days later, Mr Baldwin, the Chief Executive, wrote to Miss Hodkinson asking whether she wished to raise a formal grievance and offered to meet with her to discuss her concerns. Miss Hodkinson replied that she was too upset and unwell to communicate properly without breaking down and was distraught by the treatment she had received.
In response, following legal advice, on 8 November 2013, Mr Baldwin wrote back suggesting that they meet before the end of the month and was flexible about where the meeting should take place. The letter set out six areas of concerns that he wished to discuss (which, as the Employment Tribunal found, Mr Baldwin himself did not consider were serious or urgent). This letter prompted Miss Hodkinson to resign on 15 November 2013, citing a breakdown in trust and confidence in that she considered the timing and nature of the issues raised in the letter as intending to elicit her resignation. She then brought claims of constructive unfair dismissal, discrimination arising from disability, harassment and a failure to make reasonable adjustments.
Employment Tribunal and EAT proceedings
The Employment Tribunal rejected various complaints of bullying and intimidation and found that, on occasions, Miss Hodkinson was overly sensitive to the point that this sometimes affected her credibility. However, although the concerns set out in the letter were genuinely held by PMI, (and it was entitled to raise those concerns), Mr Baldwin knew or ought reasonably to have known that the letter was likely to cause Miss Hodkinson to be so upset that she could not return to work. Nevertheless, he was prepared to take that risk. Although the letter was not, as Miss Hodkinson contended, the culmination of a campaign to drive her out of employment, the Employment Tribunal held that the letter was an act of disability-related harassment and a fundamental breach of contract entitling Miss Hodkinson to resign. Further, the Employment Tribunal held that not implementing two of the recommendations made by Occupational Health, constituted unfavourable treatment. The Employment Tribunal dismissed Miss Hodkinson's claim for failure to make reasonable adjustments because appropriate steps had been taken by PMI to facilitate her return to work in September 2013.
On appeal, the EAT found that the Employment Tribunal had erred in its approach to unfavourable treatment. It was not enough for there to be a link between an employee's disability and the employer's treatment; the employer had to create a particular disadvantage consequent upon the disability. Miss Hodkinson's disability had not been the reason for PMI's failure to implement some of the Occupational Health recommendations. They had not been implemented because PMI thought a more informal process was appropriate. The EAT also dismissed the finding of disability-related harassment. It held that the unwanted conduct, (that is, sending the letter), was not related to Miss Hodkinson's disability but related to issues of genuine concern to PMI.
Significantly, the EAT upheld the decision that Miss Hodkinson had been constructively dismissed. The letter was sent at a time when PMI knew that Miss Hodkinson was very ill and not fit to deal with it. Moreover, the letter did not raise serious concerns that had to be dealt with at that stage (in fact, some had already been dealt with and concluded). It was open to the Employment Tribunal to find that the letter was a causative factor in Miss Hodkinson's resignation, even though the concerns raised in that letter were genuine.
Communicating with employees who are on sick leave is often a tricky issue for HR or line managers. How often should they contact the employee? Should they be in contact with the employee if they are off work with workplace stress? What if the employee feels that the employer is not convinced about the genuineness of their illness when it gets in touch?
The PMI decision is interesting and poses a dilemma for employers. There is consistent advice from ACAS, the government's Fit for Work Service and Mind (the mental health charity) that employees should be encouraged to keep in touch regularly when on sick leave and should agree with their employers the frequency of contact and how contact should be made, (for instance by text, telephone or e mail). However, employers have the balancing act of reconciling this advice with the EAT's decision in PMI.
Employers do need to be wary about communicating with employees who are on sick leave and where trying to resolve issues of concern about the employee during that period. However, it remains important to maintain regular communication with the employee in relation to their well-being, treatment, return to work plans, and so on. If the purpose of the communication is to raise or deal with specific employment concerns, employers should take care to avoid the problems in the PMI case where those were admitted as not being of a serious or urgent nature, and where the employee had already warned PMI that she was too unwell to meet at that relevant time.
The PMI decision presents a real difficulty for employers in balancing the need to maintain appropriate contact with employees on sick leave but avoiding distressing employees when dealing with issues of concern.
In relation to the quite different issue of sickness absence that is not considered genuine, as in the Ajaj case, the potential fair reason for dismissal will be conduct. Employers will need to ensure that they follow a fair procedure and to carry out any necessary investigations to establish the facts of the case. See our earlier article (New ACAS Guidance on conducting workplace investigations)on the ACAS Guidance on Workplace Investigations.
Ultimately, employers will need to show that they can satisfy the Burchell test and that they have reasonable grounds for believing the employee to be guilty of the misconduct alleged following a reasonable investigation. In many cases, capturing the evidence is the difficult hurdle to overcome. Suspicions and rumours will not be sufficient to substantiate allegations of misconduct. Take care too when relying on "evidence" from social media as there may be factual issues, such as determining the precise dates of images or posts, as well as more fundamental issues of data protection and human rights considerations.