Employment Appeal Tribunal finds that 'pulling a sickie' is dishonest and a fundamental breach of contract

The Employment Appeal Tribunal has said, in the case of Ajaj v Metroline West Ltd, that an employee falsely claiming to be unwell i.e. ‘pulling a sickie’ is a fundamental breach of that employee’s contract with their employer. 

Facts
Mr Ajaj was employed by Metroline West Ltd (“Metroline”) as a bus driver. In 2014, he reportedly slipped at work and suffered an injury. He was then signed off as unfit for driving duties. 

Metroline were concerned about whether Mr Ajaj’s injuries were genuine and so had him placed under covert surveillance.  Those surveillance reports, which were seen and commented on by Metroline’s Occupational Health team, indicated that Mr Ajaj had, in fact, exaggerated the extent of his injuries, particularly his inability to walk.

Following a disciplinary hearing, Mr Ajaj was dismissed without notice on the grounds of misconduct. His appeal against his dismissal failed.

The Employment Tribunal found that Metroline had a genuine reason for the dismissal based on a reasonable belief that Mr Ajaj had exaggerated the extent of his injuries.

However the Tribunal also said that a reasonable employer would have had regard to the specific duties that the employee was engaged to do before coming to a decision to dismiss.  There was no evidence to suggest that Mr Ajaj was fit to do the work that he had been employed to do, which involved sitting in one position for long periods of time rather than walking, or that he had exaggerated his inability to do that work.  His dismissal was therefore both unfair and wrongful.

However, the Tribunal also found that Mr Ajaj had contributed to his dismissal by exaggerating his inability to walk and therefore reduced his compensation by 35%.

Metroline appealed to the Employment Appeal Tribunal (“EAT”).

Law
Once a Tribunal has established that an employer had a genuine and potentially fair reason for dismissal  it must then ask whether the decision of the employer to dismiss for that reason fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.

In making this determination, the Tribunal must not fall into the trap of substituting its own view for that of the employer i.e. it is irrelevant what the Tribunal would have done had it been in the shoes of the employer.

Decision
The EAT held that the issue of whether Mr Ajaj was capable (or not) of driving a bus was irrelevant given that he had been dismissed for misconduct (and not for capability).  The question that should have been asked was whether Metroline had reasonable grounds to believe, based on a reasonable investigation, that Mr Ajaj had misrepresented the extent of his injuries.

As well as asking the wrong basic question, in answering it the Employment Judge had also substituted his own view for that of the employer by viewing the issue as one of capability rather than conduct.

The EAT also held that if a person “pulls a sickie” (their words) this amounts to dishonesty and a fundamental breach of the trust and confidence that should be at the heart of the employer/employee relationship. The fact that Mr Ajaj had done this entitled Metroline to dismiss him without notice.

Accordingly, the EAT found that it was perverse of the Employment Judge to have held that the dismissal was unfair and wrongful and Metroline’s appeal succeeded

Comment
This case does not break any new legal ground, but it is a useful reminder of the principles that the Employment Tribunal should (but sometimes does not) apply when making a determination in a claim for unfair dismissal.

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