Pulling a sickie or exaggerating the effect of illness may be gross misconduct

An employer who reasonably believed that an employee was lying about his symptoms was entitled to find gross misconduct.

Facts of the case

Mr Ajaj, a bus driver, reported that he had slipped at work and was injured. He was seen by his GP, a physiotherapist and occupational health and his absence from work was covered by a fit note.

Metroline was concerned that Mr Ajaj's reported injury and symptoms were not genuine and arranged for covert surveillance. The claimant's descriptions of his ability to carry out normal day to day activities such as walking and shopping were contradicted by the video evidence.

Following a disciplinary hearing, Mr Ajaj was dismissed on the grounds of conduct. This decision was upheld on appeal. Mr Ajaj brought claims in the Employment Tribunal of wrongful and unfair dismissal.

The Employment Tribunal decision

At first instance, the employment judge found that Mr Ajaj had been wrongfully and unfairly dismissed. In making this decision, the judge found that the claimant had exaggerated his symptoms but the judge also considered whether the claimant was, on the evidence, capable of carrying out his role (sitting in one position for an extended period of time as would be required by a bus driver).

The EAT decision

The EAT disagreed. It found that the employment judge was wrong to consider capability issues and should have focused on the misconduct of the claimant in lying about his condition and his ability to carry out normal day to day activities. The EAT found that the employer had a reasonable belief, based on a reasonably thorough investigation, that the employee had exaggerated his symptoms and misrepresented his ability.

The Hon Mrs Justice Simler commented that an employee who "pulls a sickie" is "representing that he is unable to attend work by reason on sickness". She stated that "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".

Comment

Alacoque Marvin of Wrigleys comments: "While employers may welcome this judgment, it is advisable to remember that the Employment Tribunal has found that heavy-handed covert surveillance could amount to less favourable treatment in a disability discrimination claim. Employers should also be alert to the fact that, in capability dismissals, being fit for leisure activities is not always the same as being fit for the activities required at work."

Case report: Metroline West Limited v Ajaj UKEAT/0185/15RN