"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
Mr Ajaj suffered an injury in the workplace and was declared unfit for work by the Occupational Health Department. He provided a GP’s note to his employer confirming his injuries but his employer suspected that the description of his injuries was exaggerated and began surveillance which showed the employee carrying out a number of activities that did not match the description provided. The employee was dismissed for gross misconduct on the basis that he had made false claims for sick pay and injury at work and misrepresented his ability to attend work.
The EAT held that the dismissal had been lawful. Crucially the EAT held that an employee who “pulls a sickie” is dishonest and in fundamental breach of contract. The focus of the EAT was on dishonesty. In this case, the employee was undoubtedly injured and arguably not fit to carry out his role but it was the lie about the extent of his injury which was critical in determining that there had been a fundamental breach of contract.
This means that where there are concerns about an employee feigning illness, an employer will have good scope for a gross misconduct dismissal. The Tribunal will look to whether there were reasonable grounds for belief in the misconduct and whether a reasonable investigation was carried out.
Where employers are concerned that an employee is malingering they should ensure that they follow a fair internal investigatory and disciplinary process and make sure that any disciplinary action is proportionate.
Should you have any questions about the issues raised in this blog post please contact a member of our employment team.
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