In the recent case of Metroline West v Ajaj the EAT found that if an employee takes a sick day when they are really not ill this can amount to dishonesty and a fundamental breach of the mutual trust and confidence at the heart of the employment contract which could constitute gross misconduct and grounds for dismissal.
Mr Ajaj, a bus driver, alleged that he had slipped and fallen in the toilets at work and went on sick leave. Although his alleged injury was supported by his physiotherapist and an occupational health adviser Metroline became concerned that Mr Ajaj’s injury may not have been genuine or that he may have exaggerated his symptoms. Metroline arranged for surveillance of Mr Ajaj’s activities while he was off sick which showed him carrying heavy shopping and walking for more than 5 minutes at a time. (These were both activities which Mr Ajaj said he was unable to do on account of his injury).
The Claimant was invited, to a disciplinary hearing where three allegations were set out.
- first, that the Claimant 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.
The hearing found that each of the allegations were made out and that his actions constituted gross misconduct. Metroline decided that Mr Ajaj should be dismissed with immediate effect. Mr Ajaj appealed the decision, however the appeal panel found that Mr Ajaj had substantially exaggerated the degree of his injury or that it had even been staged. The appeal was dismissed and Mr Ajaj was summarily dismissed.
Mr Ajaj subsequently brought a claim for unfair dismissal. The Tribunal stated that although Mr Ajaj had exaggerated the effects of his injury, there was no basis to say that he had exaggerated his inability to carry out his duties as a bus driver, which involved him sitting for long periods. The Tribunal concluded that Metroline did not have reasonable grounds to conclude that Mr Ajaj was guilty of the allegations. Therefore they concluded his dismissal was unfair.
Metroline appealed. The EAT disagreed with the Tribunal stating that the question was not whether Mr Ajaj was capable of walking or capable of sitting for long periods as this was not a capability dismissal. The question of whether Metroline had reasonable grounds to believe that the claimant had misrepresented his injury and its effects was one of misconduct. The judge in the EAT summarised the position as:
“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.”
On the evidence before her, the judge in the EAT concluded that Metroline had carried out sufficient investigations to reach a conclusion that the Claimant was guilty of serious misconduct that did amount to a fundamental breach of contract and the appeal was allowed.
Lessons to take forward
This is a helpful case for employers, but as with all misconduct cases the decision will turn on the facts of each specific case. Some general points can be taken from the decision:
- This case appears to show that even if an employee is unwell, exaggerating the extent of an injury may amount to dishonesty and be a breach of the implied term of mutual trust and confidence.
- However, employers should tread carefully before accusing employees of exaggeration and dishonesty as this too could be seen as a breach of mutual trust and confidence by the employer. Clear evidence will be needed to show that the employee’s actions move into the misconduct arena – in order to be able to show that dismissal is within the “band of reasonable responses”.
- In many circumstances, employers are likely to find it hard to gather the necessary evidence to show they have reasonable grounds for believing an employee is guilty of dishonesty as video surveillance is often neither likely to be practical nor cost effective. Evidence may come from social media posts such as Facebook accounts – but is unlikely to be sufficient on its own. We frequently get asked about posts showing employees on sick leave who are out socialising or able to travel on holiday – such evidence can be helpful but is usually not determinative and gathering clear medical evidence and any other corroborative evidence is likely to need to be necessary.
Sickness issues are notoriously difficult and time-consuming to manage with certainty. Managing sickness issues appropriately and consistently will help ensure that, if concerns as to the validity of the absence arise, tribunals are more likely to be sympathetic to the employer’s position. The audit trail for employers needs to extend from the initial reporting of any accident at work/illness through the management of that absence and where employers have concerns then employers need to be confident to raise those concerns with the employee and to ask for any clarification that is needed to understand the extent of the illness/absence. Care will always be needed to ensure that the prime objective is to create a caring and nurturing relationship, but in those circumstances where there are valid grounds to question the nature of any absence, this case will give employers more confidence to reasonably follow up on those concerns.