Sickies and Breach of Trust

11 Apr 2016

Ibrahim Ajaj is a bus driver. He said he was injured when he slipped on the floor of the toilets at Metroline West’s depot in Willesden.

Metroline became suspicious about the nature and extent of Mr Ajaj’s injuries and put him under covert surveillance. Films were made which seemed to contradict the stories he was telling so he was invited to a disciplinary hearing. The allegations were of making a false claim for sick pay; misrepresenting his ability to work and making a false claim for suffering an injury at work. The allegations were found to have been established and Mr Ajaj was dismissed for gross misconduct. 

The Employment Tribunal decided Mr Ajaj had (a) obtained or claimed sick pay by fraudulently representing to be sick when he was not; (b) misrepresented his ability to work to both Metroline and its doctor; and (c) exaggerated his condition or deliberately attempted to defraud the company with an injury claim which was exaggerated or staged. However the tribunal substituted its judgement for Metroline’s and found the dismissal unfair triggering an appeal.

The EAT allowed Metroline’s appeal and in doing so The Honourable Mrs Justice Simler DBE said something which’ll give employers heart:

“…(Mr Ajaj’s barrister) faintly suggested that absence from work based on an assertion that one is unfit to work might give an employer grounds to dismiss, but would not necessarily amount to gross misconduct. I disagree: an employee “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.”

It would be remiss of me not to mention three caveats:

1.     all cases are sensitive to their own facts;

2.     don’t arrange covert surveillance without legal advice; and

3.     if you’ve tolerated this behaviour you must signal a change in your practice. Tempting though it may be, making an unannounced example of someone would probably be disproportionate and therefore unfair.

That said there’s a robustness to Mrs Simler’s remarks which employers will welcome.