Website Cookie Policy

We use cookies to give you the best possible online experience. If you continue, we’ll assume you are happy for your web browser to receive all cookies from our website.
See our cookie policy for more information.

Practice Areas

More Information

thepartners@wrigleys.co.uk

Leeds: 0113 244 6100

Sheffield: 0114 267 5588

FOLLOW WRIGLEYS:

Pulling a sickie or exaggerating the effect of illness may be gross misconduct

March 2016

An employer who reasonably believed that an employee was lying about his symptoms was entitled to find gross misconduct.

Facts of the case

Mr Ajaj, a bus driver, reported that he had slipped at work and was injured. He was seen by his GP, a physiotherapist and occupational health and his absence from work was covered by a fit note.

Metroline was concerned that Mr Ajaj's reported injury and symptoms were not genuine and arranged for covert surveillance. The claimant's descriptions of his ability to carry out normal day to day activities such as walking and shopping were contradicted by the video evidence.

Following a disciplinary hearing, Mr Ajaj was dismissed on the grounds of conduct. This decision was upheld on appeal. Mr Ajaj brought claims in the Employment Tribunal of wrongful and unfair dismissal.

The Employment Tribunal decision

At first instance, the employment judge found that Mr Ajaj had been wrongfully and unfairly dismissed. In making this decision, the judge found that the claimant had exaggerated his symptoms but the judge also considered whether the claimant was, on the evidence, capable of carrying out his role (sitting in one position for an extended period of time as would be required by a bus driver).

The EAT decision

The EAT disagreed. It found that the employment judge was wrong to consider capability issues and should have focused on the misconduct of the claimant in lying about his condition and his ability to carry out normal day to day activities. The EAT found that the employer had a reasonable belief, based on a reasonably thorough investigation, that the employee had exaggerated his symptoms and misrepresented his ability.

The Hon Mrs Justice Simler commented that an employee who "pulls a sickie" is "representing that he is unable to attend work by reason on sickness". She stated that "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".

Comment

Alacoque Marvin of Wrigleys comments: "While employers may welcome this judgment, it is advisable to remember that the Employment Tribunal has found that heavy-handed covert surveillance could amount to less favourable treatment in a disability discrimination claim. Employers should also be alert to the fact that, in capability dismissals, being fit for leisure activities is not always the same as being fit for the activities required at work."

Case report: Metroline West Limited v Ajaj UKEAT/0185/15RN

 

If you would like to discuss any aspect of this article further, please contact Alacoque Marvin on 0113 244 6100.

To keep up to date with further updates from Alacoque, you can follow her on Twitter here or sign up for details of Wrigleys events here

The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors

 

 

Alacoque Marvin View Biography

Alacoque Marvin

Solicitor
Leeds

10 Oct 2019

Female manager's shoulder massage of male team member was not sexual harassment

EAT upholds tribunal's decision that conduct was unwanted but not related to the claimant's sex

09 Oct 2019

Exciting times in York for community-led housing

There are a number of interesting projects happening in York at the moment, the most high profile of which are:

07 Oct 2019

Extinction Rebellion protests and employment law

What do employers and employees need to know about protests?