In the recent case of Ajaj v Metroline West Ltd UKEAT/018/15/RN an employee who disingenuously claimed to be unfit to attend work was held to be dishonest and had fundamentally breached the trust and confidence of the employee/employer relationship.   

In Ajaj, the Claimant went off sick claiming to have suffered injury following a fall at work. He was referred to the company’s occupational health advisers, who concluded he was not fit to conduct his duties at work.  Amid concerns over the genuine nature of Mr Ajaj’s injuries, covert video surveillance of the employee was arranged by Metroline.  This video footage showed Mr Ajaj carrying out activities which he had claimed to Metroline he could not do. Mr Ajaj was summarily dismissed for gross misconduct based on his falsified claim of an injury at work, false claims for sick pay and misrepresentation of his ability to attend work.

The EAT (overturning the first instance decision) held that the dismissal for gross misconduct was within the band of reasonable responses.

The main issue for the EAT was whether there were grounds on which a reasonable employer could have held the belief that the Claimant had misrepresented his ability, and whether such grounds involved a serious breach of trust. Contrary to the Employment Tribunals findings; the Employment Appeal Tribunal concluded that Mr Ajaj misrepresenting his inability to attend work by reason of sickness amounted to dishonesty which was considered to be a fundamental breach of the trust and confidence.  Summary dismissal was, therefore, within the band of reasonable responses.

The company’s occupational health advisers, who concluded he was not fit to conduct his duties at work.

The EAT reaffirmed the well-established test for misconduct dismissals, namely that an employer needs to show that:

• the employer believed that the employee was guilty of misconduct;
• there are reasonable grounds for this belief; and
• the employer has carried out as much investigation as was reasonable given the circumstances of the case.

Whilst this case focussed on covert video recording (which may not always be appropriate or reasonable), the increased use of social media by businesses has made it easier for employees to be caught out “pulling a sickie”. With the Rio Olympics and Euro 2016 coming this summer, employers should consider reviewing their policies on social media now to check if they are up to date and make clear that posts by employees could be reviewed and used as evidence in disciplinary proceedings.