Dismissal for Lying about Symptoms is Misconduct

An employment tribunal had been wrong to find that an employer had unfairly dismissed an employee when it dismissed him for misconduct for lying about his symptoms.

Speedread

An employment tribunal had been wrong to find that an employer had unfairly dismissed an employee when it dismissed him for misconduct for lying about his symptoms. The employment tribunal had wrongly considered questions relating to his ability to do his job as a bus driver. Those questions were relevant to a dismissal on capability grounds but were irrelevant to a dismissal for misconduct. 

Facts

In Metroline West Ltd v Ajaj, Mr Ajaj was employed as a bus driver. On 26 February 2014 he slipped on water in the bus depot toilets and reported that he had suffered an injury. He was seen by Occupational Health (OH) on 4 March who concluded he was not presently fit for driving duties. 

Metroline had concerns about the genuineness of the nature and extent of his injuries and arranged for covert surveillance. His abilities revealed in the footage were inconsistent with his own reporting of his injuries at a series of absence review meetings. He said he could only do light shopping and could only walk for five or six minutes. He was shown footage showing him carrying shopping and walking for much longer. He was suspended and the surveillance report was sent to OH who agreed it was inconsistent with what he was claiming.

Following a disciplinary hearing Mr Ajaj was dismissed for gross misconduct for making a false claim for sick pay, misrepresenting his ability to attend work and falsely claiming that he had been injured at work. His appeal was rejected and he claimed unfair dismissal.

Employment Tribunal Decision

The Tribunal accepted that Metroline had genuine conduct reasons for dismissal. However, in relation to the first two grounds it said that the medical evidence supported the view that he had suffered an injury, was improving and that the issue which prevented him returning to work was sitting rather than walking. A reasonable employer would have had regard to his specific duties in determining his actual capabilities and there was no evidence that Mr Ajaj was actually capable of carrying out his duties as a bus driver. On this basis, it concluded that Metroline did not have reasonable grounds for its belief in the first two allegations. 

Regarding the third allegation, the tribunal found that Metrolink had clear medical evidence that he had suffered an injury at work. The other evidence it relied on was equivocal and speculative. No reasonable employer would have come to the conclusion that his claim to have been injured at work was false. 

The dismissal was therefore unfair. Metroline appealed.

Employment Appeal Tribunal Decision

The Employment Appeal Tribunal ruled that the employment tribunal should not have been considering issues to do with Mr Ajaj’s capability for doing the work of a bus driver. Those questions would have been relevant to a capability dismissal but were irrelevant to a dismissal for misconduct. The Employment Tribunal should instead have asked itself whether Metroline had reasonable grounds, based on a reasonable investigation, for believing that Mr Ajaj was guilty of each of the alleged acts of misconduct. It therefore set aside the finding of unfair dismissal. 

Implications

Employers who suspect that an employee is not genuinely ill or is exaggerating the extent of an illness or the effects of an injury should deal with the matter as a disciplinary issue using the disciplinary procedure. A dismissal for misconduct will fair if the employer can show that it believed the employee to be guilty of misconduct, it had reasonable grounds for its belief and had carried out as much investigation as was reasonable.