The case Metroline West Ltd v. Ajaj provides useful guidance on the actions an employer can take if they have an employee who has made up or exaggerated the effects of an illness to take fraudulent sick leave.
In this case a bus driver Mr Ajaj reported that he had suffered an injury at work after slipping. He was assessed by the occupational health department and they advised that he was unfit for driving duties.
The company became concerned about the genuineness of Mr Ajaj’s injury and had reason to believe that restrictions on his mobility were inconsistent with his own reporting of his injuries. Mr Ajaj had told his employer that he could only do “light” shopping and walk for only five or six minutes at a time.
The company took the decision to arrange covert surveillance of Mr Ajaj around the time he was due to attend a sickness absence meeting. The covert surveillance showed Mr Ajaj carrying bags of shopping and walking for well in excess of six minutes.
A disciplinary procedure was carried out at Mr Ajaj was dismissed for:
Mr Ajaj brought a claim for unfair dismissal to an Employment Tribunal. The tribunal upheld Mr Ajaj’s claim for unfair dismissal. In reaching this decision they looked at the facts of the case and stated that Mr Ajaj’s medical condition was improving but the issue that prevented him from returning to work was sitting rather than walking. The tribunal found that it would have been reasonable for the employer to consider the job that the employee does in relation to his injury. However, the tribunal reduced compensation for Mr Ajaj as they stated that he had exaggerated the impact of his injury.
The employer then appealed the case. The Employment Appeal Tribunal (EAT) overturned the decision of the tribunal and they concluded that Mr Ajaj was not unfairly dismissed. The EAT focused on the fact that Mr Ajaj had deliberately misrepresented and exaggerated the extent of his injuries.
The EAT found that the employee had committed an act of misconduct when they were dishonest with their employer regarding the impact of the medical condition. This dishonestly led to a fundamental breach of trust and confidence in the employee / employer relationship therefore the dismissal was fair.
This case is useful when dealing with sickness absence that is not genuine and therefore should be treated as a misconduct issue rather than a capability issue.
Do you have any examples similar to this case? please share them with me and give me your thoughts on the impact of this judgement.
The issue of covert monitoring is also an interesting one, in this case the employer could show that the monitoring was reasonable in the context of the case. Look out for future blog articles regarding the use of covert CCTV and secret voice recording.
In this case a bus driver Mr Ajaj reported that he had suffered an injury at work after slipping. He was assessed by the occupational health department and they advised that he was unfit for driving duties.
The company became concerned about the genuineness of Mr Ajaj’s injury and had reason to believe that restrictions on his mobility were inconsistent with his own reporting of his injuries. Mr Ajaj had told his employer that he could only do “light” shopping and walk for only five or six minutes at a time.
The company took the decision to arrange covert surveillance of Mr Ajaj around the time he was due to attend a sickness absence meeting. The covert surveillance showed Mr Ajaj carrying bags of shopping and walking for well in excess of six minutes.
A disciplinary procedure was carried out at Mr Ajaj was dismissed for:
- Making a false claim for sick pay
- Misrepresenting his ability to attend work; and
- Making a false claim for injury at work
Mr Ajaj brought a claim for unfair dismissal to an Employment Tribunal. The tribunal upheld Mr Ajaj’s claim for unfair dismissal. In reaching this decision they looked at the facts of the case and stated that Mr Ajaj’s medical condition was improving but the issue that prevented him from returning to work was sitting rather than walking. The tribunal found that it would have been reasonable for the employer to consider the job that the employee does in relation to his injury. However, the tribunal reduced compensation for Mr Ajaj as they stated that he had exaggerated the impact of his injury.
The employer then appealed the case. The Employment Appeal Tribunal (EAT) overturned the decision of the tribunal and they concluded that Mr Ajaj was not unfairly dismissed. The EAT focused on the fact that Mr Ajaj had deliberately misrepresented and exaggerated the extent of his injuries.
The EAT found that the employee had committed an act of misconduct when they were dishonest with their employer regarding the impact of the medical condition. This dishonestly led to a fundamental breach of trust and confidence in the employee / employer relationship therefore the dismissal was fair.
This case is useful when dealing with sickness absence that is not genuine and therefore should be treated as a misconduct issue rather than a capability issue.
Do you have any examples similar to this case? please share them with me and give me your thoughts on the impact of this judgement.
The issue of covert monitoring is also an interesting one, in this case the employer could show that the monitoring was reasonable in the context of the case. Look out for future blog articles regarding the use of covert CCTV and secret voice recording.
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