Call us now 01473 688100

Exaggerating illness can be grounds for dismissal for gross misconduct

Posted on 10th October 2016
Case law

The test is not whether the employee can do the job but whether there was a reasonable and genuine belief that the employee was exaggerating their illness.

On this page

Meet the author

Julie Temple Julie
Temple
Partner Telephone: 01473 694407

Metroline West v Ajaj [EAT] 2016

The Facts

Mr Ajaj claims to have had an accident at work and was off sick.  He met a number of times with occupational health.  His employer was suspicious and arranged for covert surveillance.

Prior to his dismissal, a report detailing the surveillance was provided to one of the medical practitioners, who concluded that
Mr Ajaj was exaggerating the effect of his illness.  Metroline decided that this was gross misconduct and dismissed Mr Ajaj. 

Mr Ajaj appealed his dismissal.  At the appeal stage, the actual covert video recordings were placed before the medical practitioner, who again confirmed the view that Mr Ajaj was exaggerating the effect of his illness.

The employment tribunal, despite accepting that Metroline had a genuine and reasonable belief that Mr Ajaj was exaggerating, concluded that Mr Ajaj’s dismissal was unfair.  It took the view that Metroline should have considered whether Mr Ajaj was fit for work as a bus driver. 

Metroline appealed the decision.

The Decision

Not surprisingly, the EAT disagreed. 

Given that Metroline had a reasonable and genuine belief that that Mr Ajaj was exaggerating the effect of his illness, this was misconduct and it was within the band of reasonable responses to dismiss.  Metroline did not have to consider whether Mr Ajaj was in fact capable or otherwise of carrying out his role as a bus driver.  In fact that was the wrong test entirely!

The EAT commented: "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”.

Comment

To dismiss for ‘pulling a sickie’ an employer will need reasonable evidence on which to base its conclusion.  Employers should not jump to conclusions.

Clear, concise and accurate information for employers and HR professionals

Visit the hrlegal archive

Find out how we can help you

Click here to contact us or phone us 01473 688100

Keep your legal costs down with

Professional telephone and email advice and guidance for solving your everyday employment law and HR issues

No waffle, well written employment law updates and HR news articles, including case reports, helping employers and people managers keep up to date with what's important

Our outstanding employment tribunal litigation service for employers designed to secure the best possible outcome for a value for money cost

Tailored, knowledgeable and cost effective 'How To' training in HR best practice and employment law for people managers

Related articles