Malingering and Exaggerating an Illness can be Misconduct for a Fair Dismissal

Mr Ajaj who was a bus driver had declared that he was injured and was unfit to work. He was seen by an Occupational Health Advisor on behalf of MWL who clarified that he was not fit to work. After some time MWL became suspicious of the authenticity of Mr Ajaj's claims and arranged to have surveillance carried out on Mr Ajaj. On the footage captured it was shown that Mr Ajaj's sickness claims were exaggerated and inconsistent with the activities he was carrying out, as shown on the surveillance tapes.

When Mr Ajaj was invited to a disciplinary hearing and one of his representations were that the tapes had been altered, despite his pleas the diciplinary co-ordinator felt the claims MWL were making were correct and he was dismissed for gross misconduct with immediate effect.

Mr Ajaj then fetched a claim for unfair dismissal and at first instance was successful. The ET held that as MWL had used capability for the reason of dismissal they should have carried out investigations to show whether he could carry out his duties and for how long. Whilst they had identified that he had exaggerated his condition, it may well have been more appropriate to dismiss him under the reason of conduct but that was not the case.

However, setting aside that ruling the EAT concluded that where an employee pulls a "sickie" and claims that he is unfit to work but evidence suggests otherwise then this behaviour amounts to dishonesty and breach of the mutual trust and confidence which is a fundamental principle to contracts of employment.