Tribunal case of bus driver who alleged injury
This week, we examine the facts of a recent Employment Appeal Tribunal case to illustrate the options open to employers if they suspect an employee of feigning an illness or injury. In particular, we focus on the investigation of the facts in a case such as this and the guidance offered by the Employment Judge in reaching her decision.
The circumstances in the case of Metroline West v Ajaj (UKEAT 0185 & 0295/15) were that the Appeal Tribunal were asked to reconsider an Employment Tribunal decision which found that Mr Ajaj had been both unfairly and wrongfully dismissed.
He was employed by Metroline West as a bus driver and had 10 years continuous service at the time of the sequence of events that led to him being dismissed. Out of the blue, he reported to his employers that he had slipped on water on the floor of the toilets at their bus depot and had suffered an injury. He was subsequently seen by an Occupational Health adviser who concluded that Mr Ajaj was not fit for driving duties at that time. He was also referred for physiotherapy by his GP.
The Appeal Tribunal Judge then summarised the employer’s actions as time went on.
“The Respondent was concerned, as a consequence of a number of matters, about the genuineness of the nature and extent of the Claimant’s injuries, and accordingly arranged for covert surveillance of the Claimant... in and around the time he was attending for a sickness absence review. The Respondent, having received that surveillance footage, believed that the Claimant’s abilities as shown in the footage were inconsistent with the Claimant’s own reporting of those injuries.”
Without informing him of the ongoing surveillance, three meetings were held with Mr Ajaj to progress his state of health, in particular in relation to his alleged injury. At the last of these, he was shown the covert video footage for the first time. Having listened to his explanations, Metroline decided that he had been guilty of misconduct and implemented their disciplinary procedure.
At a subsequent disciplinary hearing, three separate allegations formed the subject matter for the meeting. These were:
- that Mr Ajaj had made a false claim for sick pay;
- that he had misrepresented his ability to attend work;
- that he had made a false claim of an injury at work.
He was eventually dismissed when the senior manager who conducted the hearing for Metroline West concluded that all three grounds constituted acts of gross misconduct by Mr Ajaj.
Having lost the original Employment Tribunal, the EAT allowed Metroline West’s appeal against the unfair and wrongful dismissal findings. The basis for this finding was that the original Employment Tribunal had misdirected itself in relation to the core issues. The correct question for a Tribunal to ask in this case was
- whether the employer had reasonable grounds to believe, based on a fair investigation, that Mr Ajaj had misrepresented his injury and its effects on him.
The EAT found that he had done just that. The Appeal Tribunal Judge observed that, if employees state that they are unable to attend work because of sickness and they are not actually sick,
“that seems to me to amount to dishonesty and a fundamental breach of trust and confidence that is at the heart of the employer/employee relationship”.
So, once again, the merits of a proper and full investigation into acts of misconduct are clear to see, although covert surveillance is still a relatively unusual element in that process.
Employers should of course be aware that the facts of each situation are unique and that dismissals for giving false information about reasons for absence need careful handling and consideration.
Contact our HR experts at Quest HR for guidance on any similar issues that may be affecting your organisation – we are here to help. Also see our HR guide Grievance, Mediation, Disciplinary
