Mr Ajaj in Metroline West Ltd v Ajaj was a bus driver and claimed that he had slipped and fallen at work and had been injured. An occupational health report came to the conclusion that he was not fit to carry out his duties. However, Metroline became suspicious of Mr Ajaj and took the view that he may be exaggerating his injuries. Therefore, they carried out surveillance of Mr Ajaj. It appeared from the surveillance that his injuries were not as serious as he had suggested during several sickness absence interviews.
Metroline therefore conducted a disciplinary hearing and it was concluded that Mr Ajaj had indeed been exaggerating his injuries and was dismissed for gross misconduct. His appeal was also unsuccessful and he therefore, raised a claim for unfair dismissal.
The Employment Tribunal found that Metroline truly believed that Mr Ajaj had been exaggerating his injuries. However, they determined that the dismissal had been unfair because they had not had regard to whether or not Mr Ajaj was capable of carrying out his duties.
The Employment Appeal Tribunal (the "EAT") held that the Tribunal had taken the wrong approach, given Mr Ajaj was dismissed for misconduct. The EAT made clear that his capability to do the job was irrelevant to the question of whether or not he had been fairly dismissed. The EAT took the view that Metroline had carried out a reasonable investigation and had reasonable grounds for believing that Mr Ajaj was exaggerating his injuries and as such, his dismissal had not been unfair.
Of particular note is the EAT's comments that “an employee [who] “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.”