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On 3 December 2015, the Employment Appeal Tribunal (“EAT”) decided in Metroline v Ajaj that a bus driver who falsely represented that he was unable to attend work because of sickness, fundamentally breached the trust and confidence at the heart of the employer/employee relationship and was correctly dismissed by the employer for ‘pulling a sickie’ by reason of gross misconduct with the traditional ‘conduct test’ applied as decided in British Home Stores Ltd v Burchill.

The Legal Background:

An employer must have one of five potentially fair reasons for dismissing an employee. They are; conduct, capability or qualifications, redundancy, illegality or some other substantial reason. If the reason is conduct or capability then an employer must also follow a fair procedure, comply with ACAS Code of Practice on Disciplinary and Grievance Procedures and establish that the decision to dismiss the employee is reasonable in all the circumstances.

Case Facts:

Mr Ajaj had been employed by Metroline West Limited for 10 years and was dismissed for gross misconduct following an allegation that he had lied about his sickness absence.

On 26 February 2014, Mr Ajaj alleged that he suffered an injury as a result of a fall in the toilets at work. On 4 March 2014, an occupational health doctor reported he was not fit for driving duties.

For unreported reasons, Metroline had concerns about how genuine Mr Ajaj’s injury was and arranged for covert surveillance of him when he attended work for a review of his sickness.

Surveillance footage led the Metroline to believe Mr Ajaj’s account of his injuries was inconsistent with what had been observed and the employer arranged further surveillance and continued to meet Mr Ajaj.

On 23 April 2014, Mr Ajaj was confronted with the surveillance footage and invited to a disciplinary hearing. Mr Ajaj was dismissed because he had made a false claim for sick pay, misrepresented his ability to attend work and made a false claim of an injury at work.

Mr Ajaj’s appeal was unsuccessful. However, he pursued a claim for unfair dismissal.

The Claim in the Employment Tribunal (ET):

The ET held that fairness of dismissal should be assessed based on traditional ‘capability’ considerations, i.e. when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms. The ET found Mr Ajaj had been unfairly dismissed. The decision was appealed against by Metroline on the basis that the ET had not applied the correct legal test for determining an unfair dismissal.

The Decision from the EAT:

The EAT agreed with the employer and overturned the ET decision on the basis that the question for the ET to consider was not whether the employee could reasonably have been expected to return to work but whether the employer had reasonable grounds, based on a reasonable investigation, to believe Mr Ajaj had misrepresented his injury and its effects.

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Are you an employer that finds yourself in a situation where an employee may have misled you about the reasons for their absence? To discuss your position, contact Tom Evans, Associate, Employment & HR Team on 0151 230 1217 or by email tom.evans@dtmlegal.com.

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