The Employment Appeal Tribunal has held that pulling a sickie, particularly over an extended period, can amount to gross misconduct entitling an employer to terminate employment with immediate effect.
The claimant 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 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.