Thinking of Pulling a Sickie? Think Again!

Can an exaggerating claim of ill health amount to gross misconduct for a fair reason to dismiss?

Yes, said the Employment Appeal Tribunal.

In the case of Ajaj v Metroline West Limited UKEAT/0295/15/RN the Employment Appeal Tribunal (“EAT”) have stated that when an employee pulls a ‘sickie’ this can amount to gross misconduct particularly when the sickness absence is over a prolonged period of time.

Background

Mr Ajaj was a bus driver for the Metroline West Limited (“MWL”). He had informed his employer that he had been injured and was subsequently unfit to work. Consequently he was absent from work on sick leave and was paid sick pay as a result. As part of their obligations, MWL advised Mr Ajaj was to see an Occupational Health Advisor. Mr Ajaj co-operated with the request and saw the OHA who initially advised that he was unfit to work and ultimately corroborated both his injuries and suggestions. After some time MWL became suspicious of Mr Ajaj and his injuries, and further the authenticity of his claim. As a result of such suspicion MWL arranged to have Mr Ajaj put under surveillance. Mr Ajaj was recorded by the surveillance on three separate occasions when he attended for medical reviews as part of his sickness review.

On the first occasion he was recorded attending a sickness absence review. Following on from his review ‘MWL, received the surveillance footage, and believed that his abilities as shown in the footage were inconsistent with his own reporting of those injuries’. Essentially the footage produced appeared to show Mr Ajaj’s sickness claims were unsubstantiated, and from the same it was allege he had exaggerated his injuries.

There was a second medical examination, which Mr Ajaj attended. Again, he was placed under video surveillance. In his second review he ‘reported that when he was walking the pain reduced but it increased when he was in one position and that the Occupational Health adviser had recommended that he keep walking’. During this visit Mr Ajaj discussed the potential to going back to work for reduced hours of 1 day a week once his sickness certificate had expired. ‘Throughout both reviews the Claimant was unaware of the surveillance being conducted, and was covered by a medical certificate that simply said that he was not fit for work’.

A third and final meeting took place to review his condition, which was again subject of surveillance. Mr Ajaj again stated that he could walk but was still moving slowly and he suggested his injuries were still affecting his ability to perform tasks. He told the OHA that he was due to see his GP again, but that he was till taking medication, which restricted his ability to drive.

Disciplinary Hearing

Pursuant to the surveillance, Mr Ajaj was invited to a disciplinary hearing based on what was caught on the surveillance footage. The footage seemed to show that Mr Ajaj was not facing the difficulties he suggested he was and this was put to him during the disciplinary hearing. During the hearing it was presented by one of his representations that the tapes had been altered and doctored to make out as though Mr Ajaj was being dishonest regarding his injuries. MWL found against Mr Ajaj and the disciplinary co-ordinator found, despite his pleas, he had exaggerated his illness and he was dismissed for gross misconduct with immediate effect.

Unfair Dismissal Claim

Mr Ajaj then submitted a claim for Unfair Dismissal and at first instance he was successful. The Employment Tribunal accepted the accuracy of the record provided by the Claimant to the OHA and ‘moreover the contention that he had been on strong painkillers and had been advised not to drive while on that medication. In those circumstances, the Employment Judge said that it was unlikely that the Claimant would have suggested that he might do some driving’. The ET held that as MWL had used capability for the reason of dismissal they should have carried out investigations to show whether he could in fact carry out his duties, and if so, for how long. Whilst they had identified that he had exaggerated his condition, it may well have been more appropriate to dismiss him under the reason of “conduct”, but that was not the case they had put forward.

Employment Appeal Tribunal

The EAT disagreed with the Employment Tribunal and set the ruling aside. “The EAT concluded that where an employee pulls a “sickie”, and claims that he is unfit to work, but evidence suggests otherwise then this behaviour amounts to dishonesty and breach of the mutual trust and confidence which is a fundamental principle to contracts of employment.” The EAT were quite critical in this case of the ET and stated that the ET had essentially applied its mind to the capability of the Claimant and this was evidence by them asking questions which were in principle irrelevant and wrong. The EAT held that such “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 EAT held that 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 MWL have reasonable grounds for their belief in the misconduct alleged, and if so did they follow a reasonable process and conducted a reasonable investigation? The EAT held that MWL had carried out a reasonable investigation and therefore it was right to say that MWL were entitled to believe that Mr Ajaj had deliberately exaggerated his injuries and dismiss him accordingly.

For more information, read our ‘Understanding Employment Law’ series focusing on employment tribunals.