April 29, 2016

Dismissal for "Pulling a Sickie" Was Fair

In Metroline West Ltd v Ajaj UKEAT/0185/15/RN, the Employment Appeal Tribunal (EAT) considered the fairness of a dismissal of an employee who had exaggerated his sickness.

Mr Ajaj was employed as a bus driver for Metroline West Ltd (Metroline). Following an accident at work, Mr Ajaj was deemed unfit for driving duties by Metroline’s occupational health advisor. Metroline became concerned about the genuineness of his condition and arranged for covert surveillance. This revealed behaviour and activity that was inconsistent with Mr Ajaj’s claims regarding his incapacity. Metroline invited Mr Ajaj to a disciplinary hearing at which he faced allegations including that he had misrepresented his ability to attend work. The allegations were found to be well-founded and Mr Ajaj was dismissed without notice for gross misconduct. He claimed unfair dismissal.

The EAT found he had been fairly dismissed. It confirmed that in misconduct cases, the correct approach is to ask whether an employer had reasonable grounds to believe, based on a reasonable investigation, that the employee had misrepresented his injury and its effects. In the circumstances, Metroline had satisfied this test and its decision to dismiss was within the “band of reasonable responses” open to it. The EAT also confirmed that where an employee dishonestly alleges that they are unable to attend work due to sickness this amounts to gross misconduct entitling an employer to dismiss without notice.

This decision will be welcomed by employers. However, it is also a reminder that reasonable investigations into alleged misconduct should be carried out before any disciplinary action is taken.

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