In a recent case the Employment Appeal Tribunal held an employee’s dismissal for exaggerating his illness was fair.
What happened?
Mr Ajaj was a bus driver and suffered an injury which resulted in him being absent from work. Metroline West had concerns as to genuineness of the nature and extent of his symptoms and arranged covert surveillance. The footage provided was inconsistent with Mr Ajaj’s reporting of his condition and a formal investigation ensued. Mr Ajaj was suspended and subsequently dismissed on the grounds of gross misconduct on the basis that he had falsely claimed for sick pay, misrepresented his injury and made a false claim for a workplace injury.
He appealed but the decision to dismiss was upheld.
What did the Employment Tribunal say?
Mr Ajaj raised a claim for unfair dismissal. The tribunal held that his dismissal was unfair as the fairness of dismissal should be assessed based on traditional 'capability' considerations, i.e. when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms.
Metroline West appealed and were successful. The EAT held the tribunal had looked at the matter in the wrong way and that deliberately misrepresenting or exaggerating symptoms is an act of dishonesty and amounts to a fundamental breach of contract. As such, provided the employer has carried out a fair and appropriate investigation upon which they base their fair and reasonable conclusions, the decision will be fair (subject to proper procedure).
What should you do?
Where an employee misleads their employer, even in the context of injury and their fitness to work, the correct approach is to treat it as a conduct issue. Therefore, in these circumstances you should follow your disciplinary procedure and the usual requirements for a fair dismissal will apply including that a thorough investigation is carried out.
You should ensure your policies and procedures make the distinction between ill health and exaggerating symptoms so that employees understand that “pulling a sickie” will be dealt with as misconduct, not sickness absence.
You must exercise caution when using covert surveillance as there is delicate balance between the need to gather information for the investigation and an employee's right to be treated fairly and reasonably so that there is no breach of the implied term of mutual trust and confidence. Accordingly, covert surveillance should only be used where evidence cannot be gathered from another source, e.g. medical reports and you should keep in mind that evidence gathered as a result of surveillance is only like to be relevant if it has been assessed by a medical professional with appropriate qualifications.
Amy Jones is a specialist Employment Solicitor. If you need Employment advice please contact Amy on 01382 229111 or email ajones@thorntons-law.co.uk or alternatively contact a member of the Employment Law team.
