Metroline West Ltd v Ajaj UKEAT/0185/15/RN
A dismissal for misconduct will only be fair if, at the time of dismissal:
- The employer believed the employee to be guilty of misconduct.
- The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
- At the time it held that belief, it had carried out as much investigation as was reasonable.
The above test is known as the Burchell test, from British Home Stores Ltd v Burchell (1978).
A tribunal must determine whether the employer’s decision to dismiss because of that misconduct falls within the range of reasonable responses. This will depend on the individual circumstances of the case.
Whether the employer acted reasonably is an objective question. It is not the tribunal’s role to decide whether it would have come to the same decision as the employer, based upon the evidence of misconduct and the circumstances of the case.
In this case, the EAT had to decide whether a tribunal was right to find that an employer had unfairly dismissed an employee who had lied about the extent of his injuries, but was unable to perform his duties.
The Claimant was a bus driver who told the Respondent in February 2014 that he had slipped on water on the floor in the toilets at the depot, and suffered an injury. The Respondent’s Occupational Health Adviser concluded he was not fit for driving duties. However, the Respondent was concerned about the genuineness of the Claimant’s injuries. In addition to sickness review meetings and a second medical examination, it arranged covert surveillance of the Claimant. The Respondent believed the footage showed his abilities were inconsistent with his reporting of his injuries.
At a sickness review meeting on 24 April, the Claimant told his manager he could walk slowly and was “about 30% better”, had “no idea” about when he would be able to drive again, was due to go back to the doctor on 28 April and had been told he could not drive whilst on tablets. He said it was still not comfortable to sit, it was still difficult to put on shoes, and he was not able to do shopping or lifting unless items were very light. When he was asked when he would be able to return to work, he said he could sit in an office but not drive and did not know when he would be able to drive again. When he was asked again about shopping, he said “No, if I shop, I shop for light stuff” (such as “Chocolate, paper or sandwich”). He said he climbed stairs at a slow pace, one step at a time.
At this point the Claimant was then shown the first surveillance report (from 18 March), which said he had been shopping – to which he replied that the large bags he was carrying were full of bread. He was shown the second surveillance report, and it was put to him that he claimed to be only able to work for five or six minutes, but the report showed him walking well in excess of that. Mr Power told the Claimant he did not believe his injuries or capabilities were as bad as he claimed, and suspended him.
The Respondent found at the subsequent disciplinary hearing that the Claimant had committed three counts of gross misconduct: a false claim for sick play, misrepresentation of his ability to work, and a false claim of injury at work. He was dismissed and his appeal was rejected. He brought a claim for unfair dismissal.
The Employment Tribunal held that the dismissal was unfair. Although the Respondent had a potentially fair reason for dismissal and it genuinely believed that the Claimant had exaggerated his injury and its effects on his walking, a reasonable employer would have regard to his specific duties as a bus driver. There was no evidence that he was actually capable of carrying out the duties of a bus driver (sitting in one position for lengthy periods) in any case. However, by exaggerating the effects of his injury, the Claimant had contributed to his dismissal to the extent of 35%. He was not guilty of gross misconduct, and had also been wrongfully dismissed.
The Employment Appeal Tribunal upheld the Respondent’s appeal. The Employment Tribunal had muddled capability and conduct dismissal procedure. In assessing the fairness of the dismissal, the Employment Tribunal should have considered whether the Respondent’s decision fell within the range of reasonable responses open to an employer in those circumstances; instead, the Tribunal had substituted its own mindset for that of the Respondent. This was a question of misconduct, not capability: had the Claimant misrepresented his injury and its effects? Whether or not he was capable of doing his job was irrelevant in that context.
The Employment Appeal Tribunal (Simler J) 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.”
What to take away?
Unsurprisingly, the EAT held that pulling a sickie is dishonest and can result in dismissal for gross misconduct.
The legal test for misconduct dismissals remains the Burchell test. The employer must be able to demonstrate that it believed the employee to be guilty of misconduct, that it had reasonable grounds for that belief, and that before reaching that belief it had carried out as much investigation as is reasonable in all the circumstances of the case. The key question is cases such as this is the element of dishonesty, not the extent of the employee’s incapacity for work. Proven exaggeration of illness or injury, as here, will still be sufficient to justify a dismissal.
The employer in this case used covert surveillance to gather evidence. This is not appropriate in every case: some conditions will vary in severity from time to time but still be genuine.
It is preferable – as here – to obtain a medical opinion on the footage.
The Respondent’s Occupational Health consultant in this case stressed the importance of both formal and informal examinations, as employees can “perhaps unconsciously” exaggerate their symptoms and impairments because they are “anxious to convey their point of view”.
Social media postings can be useful evidence of an employee’s activities whilst off sick. However, employers should bear in mind that an employee is off sick because they are unfit for work – not because they are unable to participate in any other activity. An employee with depression, for example, may be encouraged to meet friends as part of their recovery.