Sacking a malingering employee

Sacking a malingering employee

If the belief that an employee is malingering is wrong, watch out, it might be discrimination.

A case in the Appeal Tribunal has outlined that a genuine mistaken opinion that an employee is malingering can be disability discrimination.  The type of discrimination concerned is discrimination from something arising as a consequence of a disability.

In short, the employee in question was on long term sick, and getting benefits for a very painful shoulder (which if it was a genuine injury would be a disability). The employer covertly recorded him doing some light manual work at home and dismissed him for gross misconduct.

The employee brought a claim for disability discrimination.  The exact claim was Discrimination from something arising out of a disability.  Unlike direct or indirect discrimination which applies to all protected characteristics (such as sex, race etc), as the name suggests this claim only applies to disability cases.

This claim is a fairly simple legal concept.  An employer cannot discriminate against someone because of something arising from their disability. For example, if someone has no legs, and the employer disciplines them for their inability to file things using a step ladder to reach the upper shelves, then the employee’s inability to reach the upper shelves using a step ladder is the “Something arising as a consequence of their disability”. The less favourable treatment would be the discipline.  The “Something” caused the less favourable treatment.

In this case, the tribunal felt that the disability was genuine, and that the light lifting did not show malingering. The employer accepted that its belief was mistaken, but it was a genuinely held belief.

So, can a mistaken belief in malingering be the “Something”?   The answer is YES.

The employee was successful in his claim for disability discrimination being less favourable treatment due to something arising from his disability.

Points to note

It is well established that in Unfair Dismissal cases for misconduct, it won’t matter if the employee is later found to be innocent, it is whether the employer reasonably believed in the employee’s guilt at the time that matters.  Not so in this type of discrimination claim.  The honest but mistaken belief that the employee was up to no good could be the basis of a discrimination claim.

Employers should act with great care when moving to punish an employee who they feel is perhaps not as ill as they make out.

This case is a great read for the serious student of employment law and can be read at the following link:  Pilkington_UK_Ltd_v_Mr_A_Jones__2023__EAT_90.pdf (

If in doubt, seek advice. If you have questions or concerns regarding this subject, Darren Sherborne can be reached on 01242 250039.

Our thanks to Sarah Clark of 3PB for drawing this case to our attention.

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