The EAT has allowed an appeal in Metroline West Ltd -v- Ajaj 2015, holding that a bus driver who exaggerated a health condition to remain off work was guilty of gross misconduct. Metroline had a genuine belief in the employee’s misconduct, which was informed by covert surveillance. The decision to dismiss did not, therefore, amount to unfair or wrongful dismissal.

Having suffered a fall at work Mr Ajaj reported that he was unfit to work. Metroline became suspicious about the genuineness of the extent of Mr Ajaj’s injuries (the reason for their initial suspicions is not set out in the judgment) and arranged covert surveillance. At first instance, the Tribunal, while accepting the surveillance showed that Mr Ajaj had exaggerated his injuries, held that a reasonable employer should have had regard to the specific duties the employee was required to perform in order to determine his actual capability. Mr Ajaj therefore succeeded in his claim for unfair and wrongful dismissal.

The EAT held the Tribunal had been led into error by considering Mr Ajaj’s capability for work. Mr Ajaj’s case was a conduct dismissal, thus his actual capability was irrelevant. The objective question to be asked was that set out in British Home Stores Ltd -v- Burchell 1978, namely whether the employer had reasonable grounds to believe, based on a reasonable investigation, that the employee had misrepresented his injury and its effects. On the evidence presented it was clear Metroline did have grounds to believe that Mr Ajaj had made a misrepresentation.

The case demonstrates that ‘pulling a sickie’ can amount to gross misconduct, and that employers can in certain circumstances use evidence obtained covertly to justify reasonable grounds of belief as regards an employee’s alleged misrepresentation.