Mr Ajaj (the claimant) was a bus driver employed by Metroline West Ltd (Metroline). He claimed to have slipped on water on the floor of the toilets at Metroline's depot and was injured. As a result, he took a period of sick leave, throughout which he was covered by a medical certificate.
Metroline became concerned about the legitimacy of his injuries and arranged for covert surveillance of the claimant. The footage appeared inconsistent with the claimant's report (to both his manager and Occupational Health) of the nature and extent of his injuries. Metroline commenced disciplinary proceedings, alleging that the claimant had:
Having reviewed the evidence and following a disciplinary hearing and appeal, the claimant was dismissed for gross misconduct.
At the Employment Tribunal (ET) the claimant was successful in his claims for unfair and wrongful dismissal. The ET held that Metroline had not been reasonable, because they had not investigated whether any exaggeration of the claimant's injuries reasonably changed the ability of the claimant to perform his job as a bus driver.
The EAT overturned the decision of the ET.
The EAT held that the ET had wrongly focused on the question of whether the claimant was fit to carry out his duties as a bus driver. This question may have been relevant in a capability dismissal case, but was irrelevant in the context of this misconduct case.
The correct question was whether Metroline 'had reasonable grounds to believe, based on a reasonable investigation, that the claimant had misrepresented his injury and its effects.'
The EAT concluded that it did. It also confirmed that if an employee 'pulls a sickie' when they are not sick, it amounts to 'dishonesty and a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship'.
In the proceedings, reference was made to an occupational health consultant's advice that an employee can perhaps unconsciously/unintentionally exaggerate the symptoms and impairments of an injury, so as to convey their point. Employers should bear this in mind and carry out appropriate investigations before making hasty assumptions that an employee is being deliberately misleading, or misrepresenting their injury and commencing disciplinary or dismissal proceedings.
Fundamentally, employees should never mislead employers about the nature and extent of their illness or injury. Based on the decision of the EAT, a breach of trust and confidence in the form of 'pulling a sickie' can lead to a dismissal for gross misconduct.