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Pulling a ‘sickie’: conduct or capability?

Pull a sickie


If an employee takes sick leave and/or claims sick pay when not genuinely unfit for work, it will usually be considered misconduct or gross misconduct. However, the recent Employment Appeal Tribunal (EAT) case of Metroline West Ltd v Ajaj, provides guidance on when such a situation could cross over into a capability issue and how the two separate concepts should be considered by employers.

The Facts

Mr Ajaj was employed as a bus driver by Metro West Ltd from 2004 to 2014. In February 2014, he reported that he had slipped on some water on the floor of the toilets at the Respondent’s depot and sustained an injury. Mr Ajaj then went on sick leave claiming that he was unfit for work. Despite his injury being corroborated by an Occupational Health report and a physiotherapist, his employer became concerned about the genuineness of the nature and extent of his injury and suspected that he was exaggerating the effects.

The employer arranged for covert surveillance, which highlighted the need for two further medical examinations. Mr Ajaj claimed he could walk for no longer that 5 minutes and that he was unable to do shopping, stating he did not know when he would be able to return to work but the surveillance told a different story. Mr Ajaj was suspended and subsequently dismissed for gross misconduct for misrepresenting the seriousness of his injury and his fitness to work.

Mr Ajaj brought a claim for unfair and wrongful dismissal. The Employment Tribunal found that he had been unfairly dismissed on the basis that the fairness of the dismissal should have been assessed on ‘capability considerations’, i.e. when would he have reasonably been expected to return to work with his real, rather than exaggerated, condition.

However, the EAT highlighted the wrong questions had been considered regarding capability and in fact these questions were irrelevant to a conduct dismissal. The Tribunal should have applied the objective test: ‘was this a reasonable employer acting within the range of reasonable responses.’ The EAT concluded that the employer was entitled to believe, if the facts were there to support it, that the employee had deliberately exaggerated the injuries he had suffered and the resulting dismissal was fair in the circumstances.


Although it will be rare for employers to successfully demonstrate an employee is “malingering” using the normal channels of Occupational Health and GP referrals, if an employer suspects an employee has deliberately lied about their health, a disciplinary procedure may be an appropriate process for employers to implement in order to carry out a full investigation. The main reason for the dismissal of a malingering employee is likely to be conduct rather than capability and employers should make it clear which procedure they are following and the two should not be confused.  If capability issues are relevant, employers should decide which issue they are be dealing with first. Employers should seek legal advice where they suspect malingering and should ensure they have appropriate medical evidence to support a decision to dismiss to minimise the risk of claims for unfair dismissal further down the line.

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