Dealing with employee conduct issues can be difficult, and employers can be anxious about striking the right balance between treating employees fairly and dealing effectively with poor behaviour. This article looks at a recent case, and articles in the news, which highlight the different ways in which an employer might choose to both prevent, and deal with, misconduct.

The case of Metroline West Ltd v Ajaj involved an employee “pulling a sickie”. The Claimant was a bus driver who, in February 2014, had an accident at work which resulted in injury. The Claimant was signed off sick, and his employer became suspicious about the nature and extent of his injuries. The employer therefore arranged covert recording of the Claimant, which apparently showed that his abilities were inconsistent with his own reporting of his injuries. The employer conducted disciplinary proceedings against the Claimant on grounds of misconduct – namely that he had made a false claim for sick pay, he had misrepresented his ability to attend work, and he had made a false claim of an injury at work. The Claimant was dismissed for gross misconduct, and this decision was upheld on internal appeal.

The Claimant subsequently brought an Employment Tribunal claim for unfair and wrongful dismissal. He succeeded at first instance, but this decision was overturned by the EAT. The Judge at the EAT found that the Tribunal at first instance had wrongly assessed the employer’s genuine belief in the Claimant’s misconduct by reference to capability considerations, which were irrelevant on the basis that this was a misconduct dismissal.

The Judge at the EAT also forcefully made the following point regarding employees taking sickness absence when they are not genuinely unwell enough to attend work: “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, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.” This position is robust but reasonable, and is helpful to employers who may previously have struggled with how seriously they could treat incidents of employees taking such “sick” days.

Meanwhile, across the pond, Amazon has apparently taken a proactive (and rather aggressive) approach in an attempt to prevent its employees from misbehaving in the first place. Amazon has reportedly been broadcasting video clips in some of its warehouses, showing how employees accused of stealing were caught and fired. The alleged offenders were apparently caught red handed stealing packages from the warehouses. In an attempt to prevent recurrences of this misconduct, Amazon showed anonymous silhouettes emblazoned with words such as “terminated” and “arrested”, alongside details of when and what they stole, how much it was worth and how they got caught.

Given the importance of ensuring employees behave appropriately, it is not surprising that organisations are developing increasingly more inventive strategies for encouraging employees to play by the rules. Employers should always be proactive in preventing their employees from misbehaving, including communicating what is and isn’t acceptable behaviour (and what the consequences of misconduct may be). As the above case shows, employers should also be confident that (subject to following appropriate procedures) they are entitled to dismiss those who are found to have broken those rules.

If you have any questions or would like further information on the issues discussed in this article, then please contact our Employment department.

Posted on 18/03/2016 in Legal Updates

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