Faked Sickness…Football Flu

legal updates

Is a faked sickness breach of the employment contract?

Read our disclaimer keyboard_arrow_down

This website content is intended as a general guide to law as it applies to the motor trade. Lawgistics has taken every effort to ensure that the contents are as accurate and up to date as at the date of first publication.

The laws and opinions expressed within this website may be varied as the law develops. As such we cannot accept liability for or the consequence of, any change of law, or official guidelines since publication or any misuse of the information provided.

The opinions in this website are based upon the experience of the authors and it must be recognised that only the courts and recognised tribunals can interpret the law with authority.

Examples given within the website are based on the experience of the authors and centre upon issues that commonly give rise to disputes. Each situation in practice will be different and may comprise several points commented upon.

If you have any doubt about the correct legal position you should seek further legal advice from Lawgistics or a suitably qualified solicitor. We cannot accept liability for your failure to take professional advice where it should reasonably be sought by a prudent person.

All characters are fictitious and should not be taken as referring to any person living or dead.

Use of this website shall be considered acceptance of the terms of the disclaimer presented above.

The Euro’s are on! How can you miss it. However, as an employer you may be concerned if members of staff call in sick at the time of a big match – could this possibly be a fake sickness?

Is a faked sickness breach of the employment contract? A recent case was heard by the Employment Appeal Tribunal on Metroline v Ajaj 2015. Ajaj had been employed by Metroline as a bus driver. In Feb 2014, Ajaj reported he has slipped on water in the toiler and suffered a injury. Ajaj was signed off sick but Metroline was concerned over the alleged injuries so they arranged for covert surveillance of Ajaj when he attended one of its sites for a sickness absence review.

The footage shows Ajaj’s level of mobility was inconsistent with his sickness claims, Ajaj was doing things he insisted was beyond his physical capabilities. Ajaj was dismissed after following the disciplinary proeceedings.

Ajaj claimed unfair dismissal. Ajaj initially won at the tribunal but this was appealed by Metroline where it was concluded where an employee claims to be unable to work due to sickness yet they are not actually ill or not as sick as they claim to be, their actions amount to dishonesty. This repudiates the employer/employee relationship and can be viewed as a fundamental breach of contract and therefore would allow the employer to terminate the employment.

However, you must not jump to conclusions or act on suspicion! Before any termination of employment takes place for a fundamental breach of contact you must conduct a reasonable investigation and be able to show that the employee has made a dishonest representation about their condition. You don’t need to go to the extreme of covert surveillance like the above case but you can rely on medical evidence or social media posts.

HowdenCompetitive, comprehensive, quick

One of the largest independent specialist motor trade brokers in the UK. Our extensive history of supplying insurance to the motor trade means we understand your business needs. By partnering with a specialist insurance broker like us, you get exactly what you need to protect your business.

Roxanne BradleyLegal AdvisorRead More by this author

Related Legal Updates

Extension of Redundancy Protection for Pregnancy and New Parents

Explore the strengthened redundancy protections for new parents with significant amendments to maternity, adoption, and shared parental leave rights, effective from April 2024, ensuring enhanced job security during critical family milestones.

Wages increasing from 1 April 2024

With effect from 1 April 2024, the hourly rates of pay are…

Employment Law: Carer’s Leave

The regulations explicitly safeguard employees from any detriment or dismissal resulting from taking or seeking to take carer’s leave.

Employment Law: Annual Leave Changes

Several significant changes came into force on 1 January 2024 that affect the statutory annual leave and pay entitlements.

The office Christmas party season is here

Where an employee makes comments concerning a person’s body parts or style of dress that are intended to be good-natured but are perceived as offensive…

Update on Rights to Flexible Working Requests

Employers will remain entitled to turn down a request pointing to reasonable grounds as a basis for refusal.

Three new employment laws for 2024

The Carers Leave Act, The Neonatal Care (Leave and Pay) Act and The Protection from Redundancy (Pregnancy and Family Leave) Act.

Get in touch

Complete the form to get in touch or via our details below:

01480 455500

Vinpenta House
High Causeway

By submitting this quote you agree to our Terms & Conditions and Privacy & Cookies Policy.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.