Pulling a sickie
Labour & European Law Review Weekly Issue 466 21 April 2016
In order to dismiss an employee fairly, employers must be able to point to one of five potentially fair reasons for dismissal such as conduct, as well as follow a fair procedure. In Metroline West Ltd v Ajaj, the Employment Appeal Tribunal (EAT) held that an employee who “pulls a sickie” is dishonest and guilty of a fundamental breach of trust and confidence which amounts to misconduct.
Mr Ajaj, a bus driver who had worked for the company since 2004, told his employer that he had suffered an injury at work towards the end of February 2014. He was seen a number of times by the company’s occupational health advisor in March and April who said that he was unfit for work.
His employer, however, was not convinced and carried out covert surveillance of him while he was off sick. Mr Ajaj’s manager then confronted him with the footage which, he said, showed that his injuries were not as bad as Mr Ajaj had claimed.
He was asked to attend a disciplinary hearing in May, after which he was dismissed summarily for gross misconduct. The company decided that he had made a false claim for sick pay; misrepresented his ability to attend work; and made a false claim of an injury at work. His appeal was unsuccessful and Mr Ajaj lodged a tribunal claim for unfair and wrongful dismissal.
The tribunal accepted that the company had a potentially fair reason to dismiss, based on conduct, and that it genuinely believed that Mr Ajaj had deliberately attempted to defraud the company by exaggerating a claim of injury at work.
However, it then went on to hold that although the company had grounds to believe that Mr Ajaj had exaggerated the effects of his injury in terms of his ability to walk, that did not mean that he could do his job which involved sitting for long periods. In addition, there was no basis for the company to rationally conclude that Mr Ajaj had made a false claim of an injury at work.
Mr Ajaj was not, therefore, guilty of gross misconduct and the dismissal was unfair. The company appealed, arguing that the tribunal had made its decision based on considerations relevant to a capability dismissal but which were irrelevant in relation to a conduct dismissal.
The EAT agreed that the question was not whether Mr Ajaj was capable of walking or sitting for long periods; but whether the company had reasonable grounds to believe, based on a reasonable investigation, that their employee had misrepresented his injury and the impact it had in terms of his ability to do his job. The tribunal had therefore made the mistake of substituting its view for that of the employer.
It held instead that an employee who “pulls a sickie” is representing that he or she is unable to attend work by reason of sickness. If that person is not sick, that amounts to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.
Having concluded that Mr Ajaj had exaggerated the effects of his injury and the accident, and that this was culpable and misleading, it was perverse for the tribunal to then hold that the dismissal was both unfair and wrongful.
The EAT set aside the tribunal’s findings.