The Employment Appeal Tribunal recently decided the rather interesting case of Ajij v Metroline West Ltd UKEAT0185/15. Mr Ajij had been employed by Metroline as a bus driver since 2004. In 2014 he reported that he had suffered an accident at work having slipped on some water on the floor of the toilets at the bus depot. He was referred to Metroline’s Occupational Health (OH) department and they concluded that he was not fit for driving duties as a result of the accident.
Metroline was concerned about the genuineness of the nature and extent of Mr Ajij’s injuries and therefore arranged for covert surveillance on two occasions. One of those was on the same day as he was reviewed by the OH department. Mr Ajij informed them that he was suffering from restrictions in his day-to-day activities, that he was using an umbrella as support whilst walking, and was only able to mobilise for approximately five to six minutes. However, the surveillance footage showed Mr Ajij walking slower than normal and tapping an umbrella on the ground but putting no weight on it. He was also seen leaving a grocery shop laden with bags, no longer tapping his umbrella, and walking with a slow but normal gait.
As a result of these and other inconsistencies, Mr Ajij was invited to a disciplinary hearing to answer charges that he had misrepresented his ability to attend work, made a false claim for sick pay, and made a false claim for injury at work (by exaggerating his injury). Mr Ajij attempted to suggest that the bags he was carrying were big but not heavy. However, there was such a stark difference in the abilities he professed to have and those shown on the surveillance footage that all three charges were found proven and he was dismissed.
Mr Ajij brought a claim for unfair dismissal to the Employment Tribunal. His claim actually succeeded, as the judge found that the medical evidence showed that Mr Ajij had suffered an injury, that he was improving, but that the reason he was unable to work related to his ability to sit for long periods rather than his ability to walk. Given that there was no evidence that he was able to sit in one place for lengthy periods of time, it was not reasonable to conclude that he had in fact misrepresented his ability to work or claim sick pay, or that he had exaggerated his injury insofar as it related to his ability to sit in a bus.
Unsurprisingly, Metroline appealed to the Employment Appeal Tribunal (EAT), who accepted their argument that the Judge had applied the wrong legal test in only focussing on the specific aspects of Mr Ajij’s injury related to his job as a bus driver. That would have been important if Metroline had dismissed Mr Ajij for not being able to perform his job. However, he was actually dismissed for gross misconduct. Based on the evidence it had, the EAT accepted that Metroline were clearly entitled to conclude that Mr Ajij had misrepresented his injury and its effects on him, and that this amounted to a breach of trust such that they had a justifiable reason to dismiss him. The EAT then went further and asserted that 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 amounts to dishonesty and a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.
This case highlights that when considering an employee who is accused of falsification of any injury, or even exaggeration or malingering, all aspects of their assertions and injuries can be considered, not only those that relate to their ability to perform their job. It is also a reminder to those who attempt, from time to time, to take time off work due to claimed or exaggerated illness, even if it is of a short duration; such conduct can, and often will, amount to gross misconduct such that an employer might reasonably consider dismissal to be an appropriate sanction.
Safia Tharoo, Barrister, 42 Bedford Row, London
