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23rd March 2016

‘Pulling a sickie’

In the recent case of Metroline West v Ajaj, the Employment Appeal Tribunal (EAT) has held that where an employee is ‘pulling a sickie’ and is acting dishonestly, it can be treated as a conduct issue.

In this case, Mr Ajaj was a bus driver who slipped on some water on the floor of the depot toilets and was subsequently signed off sick. Mr Ajaj advised Occupational Health that he was incapable of doing his job. His employer, Metroline was concerned that the accident had been staged, or that he had exaggerated his injuries.

With the assistance of surveillance evidence, his employer was able to prove that he was in fact exaggerating his illness as the footage was not consistent with what he had reported. As a consequence of this, he was dismissed on the basis that he had tried to perpetrate a fraud and Mr Ajaj brought claims of both unfair and wrongful dismissal.

The Employment Tribunal (ET) accepted that Metroline genuinely believed that Mr Ajaj had exaggerated his injury and its effects. However, it went on to assess whether the dismissal was fair by reference to capability rather than conduct. The ET found that although Mr Ajaj had undoubtedly exaggerated his ability to walk and there was a fair reason to dismiss, there was no evidence that he had exaggerated his inability to perform his contractual duties i.e. sitting on a bus on one position for lengthy periods. The ET concluded that Metroline should have assessed how long it would be before he could fulfil such duties and that Mr Ajaj had been unfairly and wrongfully dismissed. Metroline consequently appealed.

The EAT held that neither the unfair dismissal nor wrongful dismissal claim could stand. Specifically, it was held that anyone who dishonestly asserts that they are unfit for work whether through illness or sickness absence is guilty of a fundamental breach of the implied term of trust and confidence, which is at the heart of any employer/employee relationship. The principal reason for dismissal of a malingering employee is clearly a conduct issue as opposed to capability.

Whilst this decision assists employers in how they can deal with employees’ who are acting dishonestly, regarding their fitness to attend work, it is important that, as with any misconduct dismissal, there still needs to be consideration of whether there are reasonable grounds to dismiss, after having conducted a reasonable investigation and the usual Burchell principles are applied.

Carley Kerrs-Walton, HR & Employment Solicitor – QCS Expert Employment Law Contributor

Topics: Human Resources

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