Can you sack someone for malingering?
Employment law solicitor Natalie Ruane looks at whether you can fairly dismiss an employee who is suspected of malingering.
The recent case in the Employment Appeal Tribunal (EAT) of Metroline West Ltd v Mr Ajaj looked at whether it can ever be 'fair' to dismiss an employee who is suspected of ‘malingering’ or exaggerating their illness.
Mr Ajaj was a bus driver for Metroline West Ltd from 2004 to 2014. In February 2014 he reported slipping on some water at work and suffered an injury, resulting in sick leave.
Over time, Mr Ajaj’s employer became concerned about the genuineness of the nature and extent of his injuries and suspected he was exaggerating the impact. The employer arranged for covert surveillance of Mr Ajaj in March 2014.
On consideration of the surveillance footage, the employer became convinced it was correct in its belief that Mr Ajaj had exaggerated the injury.
Two further medical examinations took place in April 2014 at the company’s request. Mr Ajaj reported that he could now walk for up to 5 minutes, sitting was still uncomfortable and that he was unable to do any shopping or lifting unless it was very light. He stated that he didn't know when he would be able return to his driving duties. Mr Ajaj was then shown the surveillance footage which showed him walking in excess of 5 minutes whilst carrying large shopping bags.
Mr Ajaj was suspended pending a disciplinary investigation. The allegations were that he had made a false claim for sick pay, misrepresented his ability to attend work and made a false claim about an injury at work. The company’s view was that each allegation was established on the evidence and the company dismissed Mr Ajaj for gross misconduct. Mr Ajaj sued for unfair dismissal.
Decision – Employment Tribunal (ET)
The Employment Tribunal found that Mr Ajaj had been unfairly dismissed. The ET found that the fairness of the dismissal should have been assessed on "capability considerations" i.e. by assessing when Mr Ajaj would have reasonably been expected to return to work with his real, rather than exaggerated condition. His employer appealed.
Final Decision – Employment Appeal Tribunal (EAT)
The EAT disagreed wholeheartedly with the ET and found that it had focused on the wrong questions i.e. those about Mr Ajaj’s capability for carrying out his role as a bus driver. While this would have been relevant to a capability dismissal, it was irrelevant to a conduct dismissal, which was the case here. The ET should have applied the objective test; 'was this a reasonable employer acting within the range of reasonable responses open in the circumstances' i.e. did the employer have reasonable grounds for its belief in the misconduct alleged, had it followed a reasonable process and conducted a reasonable investigation? The EAT concluded that employer was entitled to believe, given the factual evidence, that the employee had acted dishonestly in deliberately exaggerating his injuries and therefore the dismissal was fair.
Deliberate or intentional deceit on the part of an employee in relation to their capability to do the job is dishonest, and should be dealt with as a matter of misconduct.
Capability is a different reason for dismissal with, often, a different process and the two should not be confused.
As with any conduct issue, the employer must carry out a full investigation and follow their own disciplinary procedure as well as the ACAS Code of Practice, noting any mitigating factors (for example if the employee's health had any impact on their behaviour).
If surveillance footage is to be relied on, this needs to be disclosed to the employee as part of the investigation. It is also wise to show the footage to the doctor the employer is using to get their view on whether what is recorded is inconsistent with what the employee is saying and whether, as one doctor did once put in a medical report that I have seen, that the employee was “making a seven course banquet out of a sandwich”.
The reason for the dismissal of a malingering employee will be conduct rather than capability and employers should explain to an employee which procedure they are following. If capability issues are relevant, employers should decide which issue should be dealt with first. Confusing capability with conduct could result in a finding of unfair dismissal and/or disability discrimination.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Thursday 14th April 2016