The Employment Tribunal has found that an employee who exaggerated his illness was fairly dismissed for gross misconduct.
The Claimant was employed by the Respondent as a bus driver between 2004 and 2014. He reported to the Respondent that he had slipped on a puddle of water at the Respondent’s premises. The Respondent’s Occupational Health adviser issued a report which stated that at the current time Mr Ajaj was not fit for driving duties. The Claimant’s GP referred him to physiotherapy. Due to a number of reasons, the Respondent was concerned about the genuineness of the injuries and their extent. The Respondent arranged for covert surveillance of the Claimant around the same time when he attended the Respondent’s premises for a sickness absence review. Upon reviewing the footage, it revealed that Mr Ajaj’s representation of his injuries did not correspond to what could be observed in the video.
Further medical examinations and sickness absence review were held and covert surveillance was in place during that period too. The Claimant said that his pain prevented him from moving, he could not run or walk quickly, get up or sit down quickly, he could not shop and had difficulties with dressing and shoes.
The Respondent told the Claimant that he did not believe the extent and seriousness of his injuries and for that reason suspended the Claimant. Mr Ajaj was invited to a disciplinary hearing regarding the following allegations:
- He had made a false claim for sick pay,
- He had misrepresented his ability to attend work; and
- He had made a false claim of an injury at work.
The Respondent held that each amounted to gross misconduct and summarily dismissed the Claimant.
The ET held that the Respondent had clear grounds to believe that the Claimant had exaggerated his injuries, but only in terms of his ability to walk but the medical examination had looked at this ability to sit, not walk. It decided he had been unfairly dismissed. The employer appealed.
The EAT was satisfied that the Claimant had deliberately exaggerated his symptoms and that there was enough evidence to support that. It said “An employee who “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”. The EAT held that dismissal was fair.