Metroline West Ltd v Ajaj

In a misconduct dismissal, the tribunal must apply the objective reasonable-employer test to the employer’s belief in the alleged misconduct. It must not determine whether the employee was in fact capable of performing the particular job, unless capability is the reason for dismissal.

Where the tribunal finds that an employee deliberately exaggerated injury symptoms, misled occupational health and the employer, and that conduct led to dismissal, it is perverse to conclude that the employer lacked reasonable grounds to uphold an allegation based on that exaggeration. Deliberate exaggeration capable of misleading the employer may also amount to a fundamental breach of the contract of employment.

A bus driver was dismissed for gross misconduct after covert surveillance was said to show that he had exaggerated the extent and effects of an injury while receiving sick pay and reporting to occupational health.

The Employment Tribunal held that the dismissal was unfair and wrongful, although it reduced compensation by 35% for contributory conduct. It later refused reinstatement or re-engagement and awarded compensation. The employer appealed; the employee cross-appealed on contribution and remedy.

The central issue was whether the Employment Judge had applied the misconduct dismissal test, or had impermissibly assessed the employee’s capability to perform bus-driving duties and substituted his own view for that of the employer.

1. Appeal allowed. The findings of unfair dismissal and wrongful dismissal were set aside.
2. The Employment Judge correctly identified that the dismissal was for conduct and that the employer genuinely believed the employee had fraudulently claimed sick pay, misrepresented his ability, and exaggerated his condition or injury. The Judge nevertheless applied the wrong inquiry when assessing fairness. The relevant question was whether, after a reasonable investigation, the employer had reasonable grounds for its belief in misconduct. It was not whether the employee could sit for long periods and perform the duties of a bus driver. That latter question concerned capability, which was not the reason for dismissal.
3. The Judge’s focus on the absence of evidence about prolonged sitting introduced an irrelevant consideration and substituted the tribunal’s view for that of the employer. The same error affected the analysis of both the sick-pay and misrepresentation allegations.
4. The tribunal had found that the employee exaggerated the effects of his injury, misled occupational health and the employer, acted culpably, and that this conduct led to dismissal. Exaggeration was part of the employer’s reason for dismissal. On those findings, it was perverse to hold that the employer lacked reasonable grounds to uphold that aspect of the third allegation.
5. The wrongful-dismissal conclusion could not stand for the same reason. Deliberately exaggerating sickness symptoms so as to mislead an employer strikes at the trust and confidence central to the employment relationship and amounted, on the tribunal’s findings, to serious repudiatory misconduct.
6. The 35% contributory-fault finding would not have been disturbed had it remained material. Culpable conduct contributing to dismissal is sufficient, and the tribunal’s evaluative assessment was not perverse. The remaining remedy issues were academic. The employee was ordered to pay £400 towards the employer’s appeal fees.

• Employment Appeal Tribunal: Metroline West Ltd’s appeal succeeded. The findings of unfair and wrongful dismissal were set aside, and the remaining cross-appeal issues were academic.
• Employment Tribunal: By a decision promulgated on 26 February 2015, the tribunal found unfair and wrongful dismissal and assessed contributory conduct at 35%. By a remedies judgment promulgated on 10 July 2015, it refused reinstatement and re-engagement and awarded compensation.