The recent case of Metroline West Ltd v Mr Ajaj UKEAT/0185/15/RN looked at when is it 'fair' to dismiss when an employer suspects that an employee may be malingering.
Mr Ajaj was employed as a bus driver by Metroline West Ltd from 2004 to 2014. In February 2014 the Claimant reported slipping on some water on the floor of the toilets at the Respondent's Willesden depot and suffering an injury. He then went on sick leave claiming that he was unfit for work and unable to perform driving duties. His injury and impairment were corroborated by an Occupational Health report and a physiotherapist. However, over time, his employer became concerned about the genuineness of the nature and extent of his injuries and suspected he was exaggerating the effects of his injury.
The Respondent arranged for covert surveillance of the Claimant in March 2014, around the time he was scheduled to have his sickness absence review meeting. On review of the footage, the Respondent believed that his abilities as viewed were inconsistent with his own reporting of them. Two further medical examinations took place in April 2014 where he reported that he could now walk for up to 5 minutes, sitting was still uncomfortable and that he was unable to do any shopping or lifting unless it was very light. He stated that didn't know when he would be able return to his driving duties. The Claimant was then shown the surveillance footage which recorded him walking in excess of 5 minutes whilst carrying large shopping bags.
The Claimant was then suspended and a disciplinary process was commenced. The allegations were that he had made a false claim for sick pay, misrepresented his ability to attend work and made a false claim about an injury at work. The Respondent found that each allegation was established and amounted to gross misconduct and dismissed the Claimant for misrepresenting the seriousness of his injury and his fitness for work. The Claimant brought a claim before the Employment Tribunal for unfair and wrongful dismissal.
The Employment Tribunal found in the Claimant's favour, determining that he had been unfairly dismissed on the basis that the fairness of the dismissal should have been assessed on "capability considerations" i.e. when would he have reasonably been expected to return to work with his real, rather than exaggerated condition. The Respondent appealed.
The EAT fundamentally disagreed with the ET and found that it had repeatedly asked the wrong questions i.e. those about the Claimant's capability for carrying out his role as a bus driver. This would have been relevant to a capability dismissal but was irrelevant to a conduct dismissal, which was the reason for the Claimant's dismissal. The ET should have applied the objective test; 'was this a reasonable employer acting within the range of reasonable responses open in the circumstances' i.e. did the employer have reasonable grounds for its belief in the misconduct alleged, had it followed a reasonable process and conducted a reasonable investigation? The Respondent was entitled to believe if the facts were there to support it that the employee had deliberately exaggerated the injuries he had suffered and conclude the Claimant had acted dishonestly.
If an employer suspects an employee has deliberately lied about their health a disciplinary procedure is the appropriate process and employers should carry out a full investigation and follow their disciplinary procedure. The investigation should include the state of the employee's health and whether this had any impact on his behaviour. Capability is a different process and the two should not be confused.
The principal reason for the dismissal of a malingering employee is likely to be conduct rather than capability and employers should explain to an employee which procedure they are following. If capability issues are relevant, employers should decide which issue should be dealt with first and not run both processes concurrently. Confusing capability with conduct may result in claims of unfair dismissal and/or discrimination further down the line.