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Metroline West v Ajaj
The Employment Appeal Tribunal (‘EAT’) has confirmed in this case that 'pulling a sickie' is dishonest and a fundamental breach of contract. Mr Ajaj was a bus driver. He wrongly claimed to be more sick than he was, and surveillance evidence proved him to be exaggerating. However, the employment tribunal held that the fairness of the dismissal should be assessed based on traditional 'capability' considerations, ie when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms. Mr Ajaj therefore succeeded in his claim.
Fortunately for the employer, the EAT disagreed with the tribunal. It held that an employee who 'pulls a sickie' is dishonest and in fundamental breach of contract. The principal reason for dismissal of a malingering employee is conduct, not capability, and the procedures to be followed are the traditional ones, namely did the employer, following a reasonable investigation, have a reasonable belief in the employee’s misconduct.
In Practice
"The decision by the EAT is both sensible and reassuring to employers. It can only be right that an employee who is ‘malingering’ should be able to be fairly dismissed for misconduct. As long as the employer carries out sufficient investigation to show that its belief that the employee is ‘pulling a sickie’ is a reasonable one, then the dismissal will be fair," comments Paul Burton Employment Associate.
Our Employment Team, based in Christchurch, also cover Bournemouth, Poole and the New Forest. For a free initial chat, please call 01202 499255 and Paul or a member of the team will be happy to discuss any questions that you may have.
