DISMISSAL FOR EXAGGERATING SICKNESS AND USING COVERT SURVEILLANCE

The recent case of Metroline West Ltd v Ajaj UKEAT/0185/15/RN considered whether dismissing an employee could be unfair, despite the fact that the employee had exaggerated their sickness.

The Claimant, Mr Ajaj, a bus driver, was injured in February 2014 as a result of slipping on water on the floor of the toilets at his employer’s depot. After the accident Mr Ajaj was seen by his employer’s Occupational Health adviser who said that he “was not presently fit for driving duties”. His GP referred him to a physiotherapist and he was subsequently “signed off” work until the 28^th April 2014.

However, his employers were concerned about the “genuineness of the nature and extent of the Claimant’s injuries” and so they arranged for covert surveillance on the 18^th March 2014 which provided “footage were inconsistent with the Claimant’s own reporting of those injuries”. The footage:

• Showed Mr Ajaj carrying several bags of shopping despite the fact that he said in a later meeting that he was unable to lift anything other than light shopping such as “chocolate, paper or sandwich”
• Walking long distances despite the fact that Mr Ajaj said in a later meeting he could only walk for “five or six minutes”.

At a meeting on the 24^th of April Mr Ajaj was shown the surveillance footage and argued that it was incorrect.  He agreed he was “30% better” and could work in an office but not drive. Mr Ajaj was suspended.

At the end of the employer’s disciplinary process Mr Ajaj was dismissed for gross misconduct on the basis that he had:

• Made a false claim for an injury at work
• Misrepresented his ability to attend work
• Made a false claim for sick pay

Mr Ajaj made a claim to the Employment Tribunal (ET) who:

• Accepted that Mr Ajaj had “exaggerated the effects of his injury, and that this was culpable and misleading” but
• That there was no evidence that the Claimant had exaggerated his inability to perform his contractual duties.

The employers appealed to the Employment Appeal Tribunal (EAT) who allowed their appeal on the basis that, instead of the ET looking at Mr Ajaj’s ability to perform his job, they should have looked at whether what Mr Ajaj did “amounted to deliberate exaggeration, misleading his employer and the Occupational Health doctor”. Since the ET agreed that Mr Ajaj had “exaggerated the effects of his injury, and that this was culpable and misleading” they should not have found the dismissal anything other than fair.

Advice for practice managers

As the EAT reminds us in this case, there is a “well-established test” for dismissal based on legislation and case law. When considering dismissal Practice Managers should ask:

• Is there a clear reason for dismissal?
• Is the reason for dismissal potentially fair?
• Would a reasonable employer (an objective test) dismiss the employee for that reason?

If these steps are considered, followed and clearly documented they will go a long way towards negating any potential claim.

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