Ajaj v Metroline West Ltd

In a misconduct dismissal, the statutory fairness inquiry concerns whether the employer had a genuine and reasonable belief, reached after a reasonable investigation, that the employee committed the alleged misconduct. It does not require the tribunal to decide for itself whether the employee was capable of performing the job.

Where the tribunal finds that an employee deliberately exaggerated symptoms, thereby misleading occupational health advisers and the employer, it is perverse to hold that the employer lacked reasonable grounds for a misconduct finding based on that exaggeration. Deliberate exaggeration may also amount to repudiatory misconduct and culpable conduct contributing to dismissal.

A bus driver was summarily dismissed after covert surveillance and occupational-health evidence led his employer to conclude that he had fraudulently claimed sick pay, misrepresented his ability to attend work, and exaggerated or staged a workplace injury. The Employment Tribunal held the dismissal unfair and wrongful, while finding 35 per cent contributory fault.

The employer appealed against those findings. The employee cross-appealed on contribution and remedy. The central issue was whether the Tribunal had applied the correct misconduct-dismissal inquiry or had substituted its own assessment of the employee's capacity to drive for the employer's reasonable belief in dishonest exaggeration.

1. Appeal allowed. The findings of unfair dismissal and wrongful dismissal were set aside. The Employment Judge had correctly identified the Burchell principles but misapplied them when deciding the case.
2. The dismissal was for suspected misconduct, namely dishonest misrepresentation and exaggeration of injury and its effects. The relevant question was whether the employer had reasonable grounds, following a reasonable investigation, to believe that misconduct occurred. The Tribunal instead treated the employee's capacity to sit for prolonged periods and drive a bus as decisive. That was a capability question and was irrelevant to the misconduct inquiry.
3. The Tribunal's own findings established that the employee had exaggerated the walking effects of his injury, misled occupational health and the employer, and acted culpably. The surveillance footage and medical evidence gave the employer reasonable grounds to uphold the allegation of exaggeration. It was therefore perverse to conclude that the dismissal was unfair.
4. The same error infected the wrongful-dismissal finding. Deliberately exaggerating symptoms so as to mislead the employer and occupational health advisers was serious misconduct. It amounted to a fundamental breach of the employment contract and justified summary dismissal.
5. The Tribunal's finding of culpable and causative conduct for contributory-fault purposes disclosed no error of law. Deliberate exaggeration was culpable, and the assessment of a 35 per cent reduction would not have been disturbed had compensation remained in issue. The remaining remedy issues were academic. The employee was ordered to pay £400 towards the employer's appeal fees, having regard to his means.

• Employment Appeal Tribunal: appeal and cross-appeal allowed or disposed of as stated; the Employment Tribunal's findings of unfair and wrongful dismissal were set aside.
• Employment Tribunal: Employment Judge Pettigrew held that the claimant had been unfairly and wrongfully dismissed, subject to a 35 per cent contributory-fault finding, in reasons promulgated on 26 February 2015. A remedies judgment was promulgated on 10 July 2015.