A recent decision of the Employment Appeal Tribunal (EAT) has emphasised that dishonesty over sickness absence can amount to gross misconduct and give grounds for dismissal (Metroline West Limited v Ajaj).

Mr Ajaj was employed by Metroline West Limited as a bus driver between 2004 and 2014, when he was dismissed for gross misconduct. He alleged that he was badly injured in February 2014 when he slipped and fell on spilt water in a toilet at work. He went on sick leave, claiming that he was not able to carry out his job. He was seen by his employer’s occupational health adviser, who concluded that he was not currently fit for driving duties.

Metroline began to doubt the genuineness of the nature and extent of Mr Ajaj’s injuries, however, suspecting that the accident may have been staged or that he was exaggerating his injuries. Accordingly, the company placed him under covert surveillance.

Further medical examinations took place and Mr Ajaj continued to assert that his movements were limited. He said that he could not walk for very long, was only able to shop for light things and had difficulty getting dressed. Even when his mobility improved slightly, he declared himself unable to return to his job as he was unable to sit comfortably and could not drive whilst taking strong painkillers. When he was shown surveillance videos of himself carrying two bags of shopping, he claimed that the footage must have been altered. His manager told him that he did not believe that his injuries were as serious as he made out or that his capabilities were as limited as he claimed.

Mr Ajaj was dismissed on the basis that he had tried to perpetrate a fraud, but an Employment Tribunal (ET) subsequently upheld his complaints of unfair and wrongful dismissal. Although the ET accepted that he had deliberately exaggerated his injuries, it found that there was no evidence that he had in fact been capable of sitting down for the long periods required in order to drive a bus. He was awarded compensation on the basis that he was 35 per cent responsible for his own dismissal.

In upholding Metroline’s appeal and stripping Mr Ajaj of his award, the EAT found that, having made findings of fact that he did exaggerate his condition, and that this was culpable and misleading, it was perverse of the ET to hold that the dismissal was unfair and wrongful. It had made the mistake of going on to treat the case as if it were a capability dismissal. It had evaluated his conduct by reference to his ability to perform his job as a bus driver, asking the question whether he had absented himself from work and claimed sick pay when he was fit to carry out his duties as a bus driver. This was an irrelevant question in the context of a misconduct case. The question was whether his employer had reasonable grounds for believing that he had misrepresented his injuries and their effects.

The EAT ruled that anyone who dishonestly asserts that they are unfit for work through illness or injury is guilty of a fundamental breach of the trust and confidence which lie at the heart of any employment relationship. In this case, Metroline had a genuine and reasonable belief, based on a reasonable investigation, that Mr Ajaj had attempted to commit fraud and, in upholding his claim, the ET had impermissibly substituted its own view of the facts for that of the employer.