Dismissal of malingering employees
  • 23rd May 2016

The Employment Appeal Tribunal has been considering an appeal about the correct test to apply, when assessing the fairness of a dismissal of a malingering Employee, who had exaggerated his symptoms. The Employment Tribunal had, in the first instance, tried to assess the case on traditional “capability” considerations, by seeking to determine when the Employee could reasonably have been expected to return to work, based on his real symptoms.

However, the Employment Appeal Tribunal has ruled that this approach was not the correct one. The principle reason for dismissing a malingering employee in these circumstances, is, in fact, misconduct, rather than capability.  The Employment Tribunal should therefore, apply the well-established test for misconduct set out in the British Home Stores v Burchell case.

If you would like advice on this or any other employment issue, please contact Louise Purcell on 01622 698001