In Metroline West Ltd v Ajaj (UKEAT/0185/15/RN and UKEAT/0295/15/RN) the Employment Appeal Tribunal (EAT) had to decide whether “pulling a sickie” could amount to gross misconduct, entitling the employer to terminate employment with immediate effect.

Facts

Mr Ajaj was employed by Metroline West Limited (Metroline) as a bus driver from 31 July 2004.

On 26 February 2014 Mr Ajaj reported that he had slipped on water on the floor of the lavatories at Metroline's Willesden depot and suffered an injury. He saw Metroline's occupational health adviser on 4 March 2014, who concluded that Mr Ajaj was not fit for driving duties at that time. He was referred to a physiotherapist by his GP.

Metroline had concerns about the genuineness of the nature and extent of Mr Ajaj's injuries and therefore arranged for covert surveillance of him on 18 March 2014, around the time he was on site for a sickness absence review.

On reviewing the surveillance footage Metroline believed that Mr Ajaj's abilities were inconsistent with his own reporting of those injuries.

Mr Ajaj had a second medical examination on 9 April 2014 and a second sickness absence review meeting was held on 15 April 2014. Once more he was placed under video surveillance. During the meeting Mr Ajaj told his manager, Mr Power, that he could not run or walk quickly, get up or sit down quickly or shop and had difficulty with dressing himself and putting on his shoes.

A third sickness absence review meeting took place on 24 April 2014. Mr Ajaj told Mr Power that he could walk but was still moving slowly. During the course of that meeting, Mr Ajaj reported that he could walk for longer than previously and was about 30 per cent better, sitting had improved a bit but was still not comfortable, dressing and washing were improved but putting on his shoes was difficult. When asked about shopping and lifting, he said he was not able to do this at all unless it was very light (such as shopping for “chocolate, paper or sandwich”).

Mr Ajaj was shown the first surveillance report and the footage from 18 March 2014. The report said that he had been shopping. The second surveillance report was also shown to him and it was put to him that he had told occupational health that he could only walk for five or six minutes whereas the report showed him walking for well in excess of that. Mr Power told Mr Ajaj he did not believe his injuries to be to the extent made out. Mr Ajaj was then suspended.

Mr Ajaj was invited to attend a disciplinary hearing to consider three allegations:

  1.  He had made a false claim for sick pay.
  2. He had misrepresented his ability to attend work.
  3. He had made a false claim of an injury at work.

Mr Ajaj's case in relation to the surveillance videos was that the footage must have been altered. However, the disciplinary officer decided, having heard Mr Ajaj and having considered the material, that each of the three allegations was made out, that each constituted gross misconduct, and that Mr Ajaj should be dismissed with immediate effect.

Mr Ajaj appealed and the appeal panel concluded that he had substantially exaggerated the extent of his injury. It believed it was probable that Mr Ajaj had not suffered an accident at work and was therefore falsely claiming to be injured. The appeal was dismissed and Mr Ajaj brought a claim for, amongst other things, unfair dismissal.

Employment tribunal decision

The employment tribunal (ET) accepted that Metroline had a potentially fair reason for dismissal (ie conduct) and that it genuinely believed that Mr Ajaj had exaggerated his injury and its effects.

However, it assessed Metroline's genuine belief by reference to capability (not conduct) considerations and held that, notwithstanding evidence of his exaggeration as to his ability to walk, a reasonable employer would have had regard to the specific duties that Mr Ajaj was required to perform and there was no evidence that Mr Ajaj was actually capable of carrying out the duties of a bus driver, which required sitting in one position for lengthy periods.

Given the above, the ET found that the dismissal was unfair but that Mr Ajaj had contributed to his dismissal to the extent of 35 per cent. Both parties appealed.

EAT decision

The EAT held that the ET had incorrectly applied the test for unfair dismissal by focussing on capability considerations and had substituted its own mindset for that of Metroline. Mr Ajaj's capability for doing the work of a bus driver was irrelevant in the context of a misconduct dismissal. The question was whether Metroline had reasonable grounds to believe, based on a reasonable investigation, that Mr Ajaj had misrepresented his injury and its effects and the EAT found that it did.

Specifically the EAT judge commented that “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.”

Comment

The outcome of this case is hardly surprising; there is no doubt that “pulling a sickie” is dishonest behaviour. However, the legal test for unfair dismissal has not changed. In order to establish a fair dismissal in cases of misconduct, an employer will need to show that:

  • it believed the employee to be guilty of misconduct;
  • it had reasonable grounds for believing that the employee was guilty of that misconduct; and
  • it had carried out as much investigation as was reasonable in all the circumstances of the case.

It is also important that employers do not jump to conclusions when they see Facebook or other social media posts that suggest an employee is malingering (although, provided an employer’s social media policy allows it, this will be useful evidence in a subsequent investigation into the genuineness of the employee’s sickness).

Finally, it is worth mentioning that covert surveillance will not always be appropriate and in some circumstances it may be necessary to obtain a medical opinion on the surveillance footage, to assess what an employee is and is not able to do, in order to avoid a claim of unfair dismissal.