Exaggerating illness can be grounds for dismissal for gross misconduct

Metroline West v Ajaj [EAT] | 2016

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.

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”.

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