In this case, the EAT considered whether an employer had unfairly dismissed an employee when it believed that the employee had lied about the extent of his injuries, but had been unable to perform his duties.
Mr Ajaj was employed as a bus driver. In February 2014, he reported that he had slipped on water on the floor of the toilets at work and had suffered an injury. The employer was concerned about the genuineness and nature of Mr Ajaj's injuries, and accordingly arranged for covert surveillance around the time he was attending for a sickness absence review. Having received the surveillance footage, the employer believed that Mr Ajaj's abilities, as shown in the footage, were inconsistent with Mr Ajaj's reporting of his injuries.
After a second medical examination, Mr Ajaj was again placed under covert video surveillance, and the second sickness absence review meeting was held. At a further meeting nine days later, Mr Ajaj gave details of how the injury was affecting him, including that he could not do shopping or lifting at all unless it was very light. He said that he would walk for longer than previously, and that sitting had improved but was still not comfortable, and that he could come and sit in an office but could not drive and did not know when he would be able to drive again. Mr Ajaj was then shown the surveillance reports and footage, which showed him carrying large, but not heavy, shopping bags, and walking for much longer than he had claimed he was able. The employer told Mr Ajaj that it did not believe his injuries to be to the extent made out nor that his capabilities were as bad as he had claimed. Mr Ajaj was suspended. He was invited to a disciplinary hearing. Three allegations were set out: firstly, that he had made a false claim for sick pay; secondly that he had misrepresented his ability to attend work; and thirdly that he had made a false claim of an injury at work. Having heard what Mr Ajaj had to say and having considered the material, the employer decided that each of the three allegations were made out, that each constituted gross misconduct, and Mr Ajaj should be summarily dismissed. Mr Ajaj appealed this decision, and his appeal was rejected.
Mr Ajaj claimed that he had been unfairly dismissed, and the Employment Tribunal agreed with him, holding that, although the employer had a potentially fair reason for the dismissal, and that it genuinely believed that Mr Ajaj had exaggerated his injury and its effects, a reasonable employer would have also looked at his specific duties as a bus driver, and that there was no evidence that Mr Ajaj was capable of carrying out the duties of a bus driver.
The employer appealed, and the EAT upheld this appeal. The dismissal was for misconduct, not capability, so capability considerations were irrelevant. The judge had also impermissibly substituted his own view. The EAT found as the Employment Judge had concluded that Mr Ajaj had exaggerated the effects of his injury and accident, and that this was culpable and misleading, it was perverse to hold that the dismissal was unfair.
What does this mean for employers?
Reassuringly for employers, the EAT Judge said 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". Employers can, therefore, treat dishonesty about illness and injuries as gross misconduct and dismiss summarily. Employers must, however, bear in mind that, if the dismissal is to be fair, they will have to be able to show that they genuinely believe the employee to be guilty of gross misconduct, and that they must have reasonable grounds for their belief in the misconduct alleged, having conducted a reasonable investigation.