Ajaj v Metroline West Ltd (Unfair Dismissal) [2015] UKEAT 0295_15

THE HONOURABLE MRS JUSTICE SIMLER DBE

Introduction

1. The appeals and cross-appeals in these matters arise out of a claim for unfair dismissal of a bus driver for misconduct. The bus driver is Mr Ibrahim Ajaj. I shall refer to him as the Claimant, and the Appellant in one aspect of this appeal, Metroline West Limited, as the Respondent.

2. By a Decision with Reasons promulgated on 26 February 2015 Employment Judge Pettigrew found that the Claimant was both unfairly and wrongfully dismissed but that he had caused or contributed towards his dismissal, assessing that contribution as 35 per cent. By a further Judgment following a Remedies hearing, with Reasons promulgated on 10 July 2015, Employment Judge Pettigrew, having rejected an application for reinstatement and/or re-engagement, made an award of compensation to the Claimant.

3. The following issues arise out of the appeal and cross-appeal:

(i) did the Employment Judge err in law in concluding that the dismissal was unfair by reaching conclusions that were perverse or by proceeding on the basis that capability was the reason for dismissal or by substituting his own view rather than objectively assessing the Respondent’s Reasons and the grounds for belief in the misconduct alleged;

(ii) whether the conclusion that the dismissal was wrongful was perverse;

(iii) in relation to the finding of contributory fault, whether the Employment Judge erred in failing to identify how the behaviour found was culpable;

(iv) in relation to the same finding, whether the Employment Judge erred in his assessment of contributory conduct at 35 per cent when on the Respondent’s argument given the findings it ought to have been assessed as 100 per cent; and finally,

(v) in relation to Remedy, whether the Claimant was entitled to statutory sick pay for the notice period subject to any reduction by reference to contribution.

4. Before me the Claimant was represented by Mr Adam Ohringer and the Respondent by Mr Adam Solomon. Both made clear, focused submissions for which I am grateful.

The Facts

5. The facts can be summarised relatively shortly by reference to the Tribunal’s findings. The Claimant was employed by the Respondent as a bus driver from 31 July 2004. On 26 February 2014 he reported that he had slipped on water on the floor of the toilets at the Respondent’s Willesden depot and suffered an injury. He was seen by the Respondent’s Occupational Health adviser on 4 March 2014, and in a report dated 5 March the adviser concluded that the Claimant was not presently fit for driving duties. The Claimant was referred for physiotherapy by his GP.

6. The Respondent was concerned, as a consequence of a number of matters, about the genuineness of the nature and extent of the Claimant’s injuries, and accordingly arranged for covert surveillance of the Claimant on 18 March 2014 in and around the time he was attending for a sickness absence review. The Respondent, having received that surveillance footage, believed that the Claimant’s abilities as shown in the footage were inconsistent with the Claimant’s own reporting of those injuries.

7. There was a second medical examination, on 9 April 2014. Again, the Claimant was placed under video surveillance, and the second sickness absence review meeting was held on 15 April 2014. The Tribunal recorded at paragraph 30 the fact that the Claimant reported that when he was walking the pain reduced but it increased when he was in one position and that the Occupational Health adviser had recommended that he keep walking. The Claimant told Mr Power that the Occupational Health doctor had suggested he discuss a return to work with his manager but he did not know when he would be able to return to work. He said he could possibly return and drive one day after 29 April when the certificate expired, but is recorded by the Tribunal as saying that his pain prevented him from moving, he could not run or walk quickly, get up or sit down quickly, he could not shop and had difficulties with dressing and shoes. The Tribunal found that at the end of that interview the Claimant said there would be a need to discuss his return to work and his manager, Mr Power, said that a further review would take place on 24 April. Throughout this period the Claimant was unaware of the surveillance being conducted, and was covered by a medical certificate that simply said that he was not fit for work.

8. A third meeting took place on 24 April 2014. The Claimant told Mr Power that he could walk but was still moving slowly. He said he had no idea about driving and he was due to go back to the doctor on 28 April and had been told that he could not drive whilst on tablets. The Tribunal found at paragraph 33 that the Claimant did not say that he had come to test himself at driving. The Tribunal accepted that the possibility of driving was mentioned on 15 April, but the Employment Judge accepted that nothing was said at that meeting to lead the Claimant to believe that there would be a test. Moreover, he went on to say that he accepted the accuracy of the record that the Claimant reported being on strong painkillers and had been advised not to drive while on that medication. In those circumstances, the Employment Judge said that it was unlikely that the Claimant would have suggested that he might do some driving.

9. During the course of that meeting the Claimant reported that he could walk for longer than previously and was about 30 per cent better, sitting had improved a bit but was still not comfortable; dressing and washing were improved, shoes were difficult, and, when asked about shopping and lifting, he said he was not able to do this at all unless it was very light. The Tribunal recorded that when asked when he felt able to return to work the Claimant said that he could come and sit in an office but could not drive and did not know when he would be able to drive again. He was asked to confirm previous information given and asked about being able to shop while off work, to which he replied, “No, if I shop, I shop for light stuff”. The Tribunal went on to record the nature of ‘light shopping’ as “Chocolate, paper or sandwich”. When asked how he negotiated stairs, he said he did climb stairs but at a slow pace, one step at a time.

10. At that point that Claimant was shown the first surveillance report and the footage from 18 March. The report said that the Claimant had been shopping. The Tribunal recorded the Claimant saying that he was carrying bread and that the bags shown in the footage were big but not heavy. The second surveillance report was also shown to him, and it was put to him that he told Occupational Health that he could only walk for five or six minutes whereas the report showed him walking for well in excess of that. As a consequence of the reports Mr Power told the Claimant that he did not believe his injuries to be to the extent made out nor that his capabilities were as bad as the Claimant had claimed. The Claimant was then suspended.

11. The surveillance report was sent to the Respondent’s Occupational Health consultant, Dr Kahtan. On 2 May 2014 she wrote to Mr Power. The Tribunal set out her report at paragraph 45, albeit the last sentence is slightly garbled. The report is recorded as follows:

“I can confirm that the results of covert surveillance are not consistent with the observations made by Dr Akhtar on 9 April 2014. My experience is that it is very important to approach employees with a combination of formal and informal examination while in the clinic. This approach often helps me avoid situations in which an employee perhaps unconsciously exaggerates the symptoms and impairments. People can sometimes do this unintentionally because they are anxious to convey their point of view. This is something I have learned over many years. Sometimes of course it is possible that an employee will deliberately try to trick the doctor into thinking they are probably [more unwell than they] are.”

12. The Claimant was invited, by letter dated 2 May 2014, to a disciplinary hearing to take place on 7 May. Three allegations were set out: first, that the Claimant had made a false claim for sick pay; secondly, that he had misrepresented his ability to attend work; and thirdly, that he had made a false claim of an injury at work. The disciplinary hearing on 7 May 2014 was conducted by Mr Martin Moran, the depot General Manager. The Claimant’s case in relation to the surveillance videos was that the footage must have been altered (paragraph 51). Mr Moran decided, having heard the Claimant and having considered the material, that each of the three allegations were made out, that each constituted gross misconduct, and the Claimant should be dismissed with immediate effect.

13. His reasons were recorded by the Tribunal at paragraph 57: in relation to the first allegation, the Claimant had received sick pay and had lodged an appeal for rostered earnings, but the evidence showed he was carrying out normal day-to-day activities, thus sick pay was paid by reason of a fraudulent claim to be sick when available evidence showed that not to be the case. With regard to the second allegation, Mr Moran accepted the evidence of the surveillance footage and concluded that the Claimant had misrepresented his ability to attend work at his review meetings with Mr Power and the Occupational Health doctor. In relation to the third allegation, the Claimant had at least exaggerated his condition and at worst was deliberately attempting to defraud the company with a claim of injury at work that was exaggerated or even staged. Although Mr Moran said he could not prove this conclusion, he had reasonable grounds for his belief based on evidence presented at the hearing; he believed the Claimant to be dishonest. The Tribunal recorded at paragraph 58 that Mr Moran found that each of those allegations constituted gross misconduct.

14. The Claimant appealed, as he was entitled to do, and the appeal hearing took place on 9 June 2014. It was conducted by Mr Steven Harris (Operations Director) and Mr Chaddha. The Claimant produced a letter from his physiotherapist dated 14 May that was consistent with his own account of his injuries. As part of the appeal process Mr Harris decided to refer the matter to Dr Kahtan to look at the video footage for the first time; previously, she had simply looked at the surveillance reports. The Tribunal made findings about the observations she made at paragraphs 62 to 66. Importantly, the Tribunal recorded at paragraph 63 that on 9 April the Claimant had reported that he was suffering restrictions in his day-to-day activities in the form of washing and dressing, cooking and cleaning and that he was using an umbrella as support and only able to mobilise for approximately five to six minutes, whereas Dr Kahtan noted that the video evidence showed him walking slower than a normal gait, and tapping an umbrella on the pavement as he walked but not putting any weight through it.

15. Dr Kahtan recorded that he seemed to leave a grocery shop carrying laden bags in each hand, he no longer tapped the umbrella on the ground as he walked and his gait was slow but normal. She noted that on 9 April the video footage began by showing the Claimant walking easily along a paved area with a normal gait, then approaching an Underground train; he appeared to select a particular door by which to enter, he walked briskly in a normal manner in order to reach that point. He is observed climbing a flight of stairs; he puts both feet on each step before taking the next one. At his destination he was walking with a slight but definite asymmetry (the abnormality was minimal). He was then again seen walking with a slight but definite asymmetry. He appeared to cross the road in a timely manner and walked briskly with good swing-through of each leg. He then boarded a bus leading with the left leg. He was again seen walking at a normal pace; he joined a family group and undertakes a further walk and in the footage he appears at times slightly stiff through the right side but at other times walked more normally. At paragraph 66 the Tribunal set out Dr Kahtan’s opinion, which focused particularly on the footage from 9 April, the day on which the Claimant had consulted Dr Akhtar, and the Tribunal recorded the following:

“The surveillance footage showed an individual capable of undertaking a schedule of activities requiring protracted walking and including optional social activities as well as necessary movement. The individual appears at ease and relaxed chatting to his friends or relatives.

In the course of the protracted movements he undertakes, there are times when it is clear that the individual is experiencing some discomfort, for example when climbing stairs he takes one step at a time placing both feet on each step. Most of the time there is no obvious limitation.

There is a marked contrast between the level of disability reported to Dr Akhtar and the level of activity seen in this footage.

The earlier footage also shows a contrast between a man who reported himself as needing help with personal care and a man capable of carrying quantities of shopping. However, Dr Kahtan observed that this footage was obtained some days apart from the visit to Dr Rashid.”

16. The appeal panel considered that report and ultimately concluded that the Claimant had substantially exaggerated the degree of his incapacity. The appeal panel relied principally, the Tribunal found, on the disparity between what the Claimant reported to the Occupational Health doctor on 9 April - that he could only mobilise for five to six minutes - and what was shown on the video footage for the same day. They found that it was probable that the Claimant had not suffered an accident at work and was therefore falsely claiming to be injured, and the appeal was dismissed.

17. Against those background findings the Tribunal directed itself in relation to the relevant principles concerning complaints of unfair dismissal at paragraphs 72 to 78, expressly recording the fact that the principles established by the well known case of British Home Stores Ltd v Burchell [1978] IRLR 379 applied and that the test to be applied was that of the reasonable employer acting within the range of reasonable responses open in the circumstances. Then, at paragraph 79, the Tribunal set out the essential features of the Claimant’s challenge and then at paragraph 80 onwards dealt with conclusions in relation to dismissal.

18. The Tribunal accepted that the Respondent had genuine reasons for the dismissal and that those reasons were the Respondent’s belief that the Claimant had: first, obtained or claimed sick pay by fraudulently representing to be sick when he was not; secondly, misrepresenting his ability to attend work at review meetings with Mr Power and the Respondent’s Occupational Health doctor; and thirdly, exaggerated his condition or deliberately attempted to defraud the company with a claim of injury at work that was exaggerated or even staged. The Tribunal found that those matters related to conduct and that the Respondent held those beliefs genuinely so that a potentially fair reason for dismissal had been found.

19. So far as the first two allegations are concerned, however, the Tribunal concluded that the medical evidence supported the view that the Claimant had suffered an injury, was improving and that the issue for him that prevented a return to work was with sitting rather than walking. The Tribunal found that a reasonable employer in this situation would have had regard to the specific duties that he was required to perform in determining his actual capability, and in that regard the Tribunal said there was no evidence that the Claimant was actually capable of carrying out the duties of a bus driver, which required sitting in one position for lengthy periods. Accordingly, the Tribunal held that there were no reasonable grounds for belief in the first two allegations and the Respondent had failed to make a reasonable investigation in the circumstances.

20. So far as the third allegation found proved by the Respondent is concerned, the Tribunal found that the Respondent was faced with clear medical evidence supporting a finding that the Claimant had suffered an injury on 26 February of whatever severity (paragraph 101). As against the medical evidence, however, the other evidence relied on by the Respondent was equivocal and speculative; no reasonable employer could have made the finding and the Respondent did not have reasonable grounds for finding that the accident or injury had been staged. So far as the question of exaggeration was concerned, the Tribunal dealt with that at paragraphs 102 to 105:

“102. As to the finding that the effects of injury might have been exaggerated, it is clear that the respondents had grounds that would support a conclusion that Mr Ajaj had exaggerated the walking effects of an injury in his attendances at the occupational health doctor. They had Dr Kahtan’s letter pointing out the inconsistencies and they had no reason to be impressed with Mr Ajaj’s explanations. They also had the advice that exaggeration in attendances at occupational health could be either deliberate or unconscious.

103. However, there are two points to make. The first, is that the issue here is that there was no ground to say that Mr Ajaj was exaggerating his inability to carry out the duties for which he was employed, in which he would have to sit for long periods. Secondly, [it] is important to bear in mind the allegation that was made against Mr Ajaj. It was an allegation of making a false claim of injury at work. When Mr Moran gave his decision he found it proved either on the basis that the injury was staged or that the injury was exaggerated. This was not a rational basis to conclude that Mr Ajaj was guilty of falsely representing that an accident had occurred.

104. I therefore found that the respondent did not have reasonable grounds to come to the conclusion that the claimant was guilty of the conduct charged in this allegation.

105. In effect, of course, there was also a change in the basis on which the disciplinary proceedings were brought in that it adds, in effect a further allegation which was not notified to the claimant before the hearing - an allegation that, in the alternative to staging the accident, its effects were exaggerated. This flaw was not cured by the appeal as can be seen by the way which the appeal panel summarised the findings that Mr Moran had made. The relevant paragraph summarises the allegations as being either allegations of claiming an accident did not happen, or of misleading the respondent about Mr Ajaj’s ability to return to work.”

21. Accordingly, the Tribunal found that the Respondent clearly had grounds that would support a conclusion that the Claimant had exaggerated the effects of an injury but only in terms of his ability to walk. It answered that point by reference first to the fact that there was no basis to say that he had exaggerated his inability to carry out the duties for which he was employed, which involved sitting for long periods; but secondly, that one had to bear in mind that the allegation was of making a false claim of injury at work and when Mr Moran gave his decision finding that the injury was either staged or exaggerated, that afforded no rational basis for the conclusion that the Claimant was guilty of falsely representing that an accident had occurred. The Tribunal also found that there had been a change in the basis on which the disciplinary charge was advanced, in that the exaggeration point was in effect a new point, and that procedural irregularity was not cured by the appeal. Accordingly, the dismissal was unfair.

22. As for contribution the Employment Judge concluded that the Claimant had contributed to his dismissal to the extent of 35 per cent. At paragraph 112 the Employment Judge concluded that the Claimant did exaggerate the effects of his injury to the Occupational Health doctor and to the Respondent and that even though the exaggeration was about the ability to walk rather than the key capability of sitting, “nonetheless he did mislead, this was culpable, and it definitely led to the dismissal” (see paragraph 112). At paragraph 118 the Judge concluded that the Claimant was not guilty of gross misconduct and his summary dismissal was in breach of contract largely for the reasons he had already given.

The Appeals

23. Before turning to address the five heads of challenge advanced by the parties I have reminded myself of the limited role an appellate court has in dealing with appeals on a point of law only. I have reminded myself in particular of what Mummery LJ said in Fuller v London Borough of Brent [2011] EWCA Civ 267 at paragraphs 27 to 30:

“27. Unfair dismissal appeals to this court on the ground that the tribunal has not correctly applied section 98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst appeal tribunal members and the members in the constitutions of this court.

28. The appellate body, whether the Employment Appeal Tribunal or this court, must be on its guard against making the very same legal error as the tribunal stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee’s conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer’s response for the view formed by the tribunal without committing error of law or reaching a perverse decision on that point.

29. Other danger zones are present in most appeals against tribunal decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.

30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the tribunal, but then overlooked or misapplied at the point of decision. The tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.”

24. Those paragraphs make clear that the appellate body needs to guard against making the same legal error as the Tribunal stands accused of making in cases where unfair dismissal decisions are often challenged. It is easy to slip into a substitution mindset. On the other hand, even where a Tribunal gives a correct self-direction of law, it can then be overlooked or misapplied at the point of decision, so that a careful reading of the Judgment, not a pernickety critique, is necessary to see whether this has occurred.

25. The Respondent contends in relation to each of the three misconduct allegations that the Employment Judge repeatedly asked the wrong question to do with the Claimant’s capability for doing the work of a bus driver, which would have been relevant to a capability dismissal but was irrelevant to this conduct dismissal. Further, at the point of applying the law to the facts, he asked that question rather than applying the Burchell approach and asking the objective question whether the Respondent had reasonable grounds for its belief in the misconduct alleged having conducted a reasonable investigation. In answering the wrong question, the Employment Judge then wrongly substituted his view for that of the employer. Moreover, so far as the third allegation is concerned, the Respondent contends that that allegation included the question whether the Claimant had exaggerated the effects of his injury and the accident itself and the Employment Judge reached a conclusion that was perverse when he rejected that as a reasonable reason for dismissal in this case.

26. Against that Mr Ohringer submits that the Respondent is effectively seeking to re-engineer its case by reference to an argument not advanced in this way below. He submits that exaggeration was not a standalone reason for dismissal, and he points to Mr Moran’s letter to the Claimant dated 13 May 2014 and the way in which the original charges were characterised as follows:

“1. Serious Breach of Trust - False claim of sick pay

2. Serious Breach of Trust - Misrepresenting your ability to attend work

3. Serious Breach of Trust - False claim of injury at work”

27. Those three allegations were plain and straightforward, and exaggerating the effect of his injury formed no part of those allegations or the reason for dismissal. It is therefore irrelevant to the question to be addressed under section 98(4), which requires a specific reason that was the reason in the mind of the employer to be identified, and he submits that so much was made clear by the Judge at paragraph 103.

28. So far as the first two allegations are concerned, Mr Ohringer submits that the Employment Judge was necessarily correct to look at the work that the Claimant was expected to perform as a bus driver in addressing whether those allegations were made out and that the Employment Judge was perfectly entitled, given the allegation that the Claimant misrepresented his ability to do his work, to look at the evidence that the Respondent had as to this ability to do his work.

29. So far as the third allegation is concerned, whilst Mr Ohringer accepts that neither Mr Moran’s letter nor the Judgment at paragraphs 102 to 105 are as clear as they might have been, he submits nevertheless that what emerges is a finding that exaggeration was not a standalone reason; it was simply something to give weight to the allegation that the Claimant made a false claim of injury. The Employment Judge was therefore entitled to conclude that Mr Moran made an impermissible leap from the observations under surveillance and Dr Kahtan’s report to the third allegation being proven. He submits that Dr Kahtan’s report was not sufficiently strong to allow this conclusion given her acceptance that in general patients can exaggerate unintentionally or unconsciously as well as deliberately.

30. I have reached the conclusion that I do not accept Mr Ohringer’s submissions. This is a case where I agree with Mr Solomon that the Employment Judge does appear to have fallen into the substitution mindset and this has led him into error. I do not consider that there has been the re-engineering by the Respondent of its case to which Mr Ohringer referred. One need only look at paragraph 27.1 of the ET3 where the Respondent said in terms that it had a genuine and reasonable belief based on a reasonable investigation that the Claimant had attempted to commit fraud at worst or at least to misrepresent and exaggerate his symptoms and that this was borne out by Dr Kahtan’s report. Both by reference to that document and by reference to the ET1, in which the Claimant himself acknowledged that he was told at the meeting on 24 April 2014 that his manager “did not believe that his injuries were as bad as he had made them out to be and suspended him”, I am satisfied that the case was advanced on the basis that there was either deliberate misrepresentation of the extent of the injuries and the accident, or there was deliberate exaggeration.

31. The starting point is paragraphs 80 and 82 to 83 of the Judgment where the Employment Judge found that there was no untoward reason for dismissal, this being a case of dismissal for reasons of belief in the Claimant’s guilt of misconduct as reflected by the decisions of Mr Moran and Mr Harris, and then at paragraph 83, made findings of fact that the reason for dismissal was the Respondent’s belief that the Claimant had: obtained or claimed sick pay by fraudulently representing to be sick when he was not; misrepresented his ability to attend work at review meetings with Mr Power and the Occupational Health doctor; and either exaggerated his condition or deliberately attempted to defraud the company with a claim of injury at work that was exaggerated or even staged. Exaggeration was part of the case advanced by the Respondent and was found as a fact to be part of the reasons for dismissal in the mind of the dismissing and appeals officers. Moreover, it is clear that each of those allegations was underpinned by a real question mark as to the Claimant’s honesty about the extent of his injuries.

32. Turning to the first allegation, at paragraph 85 the Employment Judge set out what might have been the question in his view - in other words, whether the Claimant was capable of walking reasonable distances - but held that was the wrong question. At paragraph 86 he said the question was whether the Claimant had absented himself from work and claimed sick pay when in fact he was fit to work and that question was to be answered by reference to whether he was fit to carry out his duties as a bus driver. In my judgment, that was an irrelevant question in the context of this misconduct case. The question was not whether the Claimant was capable of walking or capable of sitting for long periods; the question in this misconduct case was whether the Respondent had reasonable grounds to believe, based on a reasonable investigation, that the Claimant had misrepresented his injury and its effects. In addition, it seems to me that as well as asking the wrong question, at paragraph 88 the Employment Judge appears to have substituted his own decision when he came to answer it:

“88. … It appears that there is nothing in the video evidence to show that Mr Ajaj was capable of sitting in one position for lengthy periods. …”

33. The appearance of substitution is reinforced at paragraph 90, where the Employment Judge found that the letter of Dr Kahtan dated 23 June did not appear to address the question of whether the Claimant was fit to work as a driver, or had difficulty in sitting for periods of time, or whether the video footage gave any indication as to these issues. He said that the Respondent did not acquaint itself with the medical position relevant to the Claimant’s duties and that in effect it ought to have done so. Had such questions been asked, said the Employment Judge, it cannot be said that he answers would not have reflected the GP’s opinion. Again, that was the wrong question. The reason Dr Kahtan was not asked to provide that material was that this was not a capability dismissal, and that question was irrelevant. It would of course have been necessary for the Respondent to address the question of capability by reference to the Claimant’s particular duties had this been a capability dismissal, but I cannot accept that this was necessary in the context of a misconduct dismissal. It seems to me that the Judge’s analysis involved a focus on irrelevant considerations and a substitution of his own view for that of the Respondent in relation to capability rather than conduct here.

34. So far as concerns the second allegation similar errors emerge from paragraphs 91 to 93. At paragraph 92 the Employment Judge said:

“92. Turning to how the claimant had represented his ability when he held his sick review meetings and his discussions with the occupational health doctor the position is that the Mr Ajaj consistently reported that he had problems with sitting, as well as walking and other activities. Key to his ability to return to work was his ability to drive, and that involves sitting for long periods. As mentioned above problems with sitting also feature in the medical advice as a factor preventing a return to work.”

35. However, how the Claimant represented or misrepresented his ability was not the question. The question was whether there were grounds on which a reasonable employer could hold the belief that the Claimant had misrepresented his ability. That was the central issue in the case, and if there were such grounds, they involved or would have involved a serious breach of trust. The Employment Judge impermissibly asked an irrelevant question directed at capability and failed to ask a relevant one.

36. The third allegation against the Claimant is, as indicated, reflected in the Tribunal’s finding at paragraph 83.3. The Tribunal held that that was the third reason in the mind of both Mr Moran and Mr Harris for dismissing the Claimant and that this reason was based on a genuinely held belief. Mr Ohringer’s argument that the question of exaggeration of injury and its effects was not a standalone reason for dismissal cannot be accepted in light of paragraph 83.3. The Tribunal made a finding of fact amply supported by the evidence I have been shown and in particular the letter of Mr Moran dated 13 May 2014.

37. At paragraph 86 the Tribunal summarised the evidence of the Claimant’s ability to carry out day-to-day activities as contained in the video footage. The Tribunal referred in particular to the fact that the Claimant is seen to be walking with various degrees of freedom, carrying shopping bags, making journeys, ascending stairs and so on. The Tribunal recorded the fact that Dr Kahtan had observed that the footage showed an individual capable of undertaking a schedule of activities although there were times when it is clear that the individual is experiencing some discomfort but most of the time there is no obvious limitation. The Tribunal went on to say that if the question was whether the Claimant was capable of walking reasonable distances the evidence the Respondent had was very clearly capable of the conclusion that he was. At paragraph 102, the Tribunal accepted that the Respondent had grounds for concluding that the Claimant had exaggerated the walking effects of an injury in his attendances at the Occupational Health doctor. Later, in the context of the question of contribution, at paragraph 112 the Tribunal held that the Claimant did exaggerate the effects of his injury both to the doctor and to the Respondent’s managers and though the exaggeration was about being able to walk rather than the key capability of sitting, nonetheless he did mislead and that it was culpable and definitely led to the dismissal.

38. Those are accordingly findings of fact by the Tribunal that this Claimant did exaggerate his condition, that this was culpable behaviour and that it misled both Occupational Health and the Respondent. The well-established test to be applied by the Tribunal in deciding whether the Respondent had acted fairly in dismissing the Claimant was an objective test of the reasonable employer, applied to every aspect of the decision to dismiss. It was perverse in those circumstances for the Tribunal to conclude nevertheless that the Respondent did not have reasonable grounds on which to uphold the third allegation.

39. At paragraph 103 two reasons are given for the conclusion in relation to exaggeration. First, that there was no ground to say that the Claimant was exaggerating his inability to carry out the duties for which he was employed. However, the Claimant’s ability or not to drive was irrelevant to the question whether he was exaggerating the effects of his injury. The second reason is harder to understand. The Tribunal said that the allegation against the Claimant was that of making a false claim of injury at work. The Tribunal reasoned that it was not rational to conclude that the Claimant was guilty of making a false claim of injury at work by reason of exaggerating the effects of his injury, but that appears to fail to recognise that the allegation being considered as the Tribunal had summarised it at paragraph 83.3 and again at paragraph 94 was one of exaggerating the effects of his condition - and therefore exaggerating the injury - and appears to have failed to evaluate that reason. The Tribunal implicitly recognised that the allegation was a different one to that which it had already evaluated at paragraph 103 when at paragraph 105 it found that there had been a change in the basis on which the allegations were made that was not cured by the appeal, but in reaching that conclusion the Tribunal relied on the summary given by Mr Harris in his letter dated 25 June 2014. That Tribunal summary makes no reference to the last sentence of the relevant paragraph in Mr Harris’s letter, where Mr Harris recorded that Mr Moran:

“… further believed that you exaggerated your claim to our occupational health advisors misleading them in the process.”

40. There is nothing to suggest that Mr Harris was excluding that last sentence from the reasons relied on by Mr Moran for dismissing the Claimant. It is difficult, therefore, to understand why the Tribunal reached the conclusion that the flaw it identified was not cured by the appeal panel. Mr Harris arranged for the video footage to be delivered to the doctor so that she could address concerns raised by the Claimant and his representative and provide a further report amending, retracting or confirming her previous advice. Mr Harris went on to consider that additional material and to reach conclusions by reference to it. In those circumstances, the conclusion is a puzzling one and not adequately explained by the Tribunal. Nonetheless, I am satisfied, whatever the Tribunal had in mind at paragraph 105, that the Judge was perverse in concluding that the Respondent did not have reasonable grounds on which to uphold the third allegation at least in so far as it concerned the question of exaggerating effects of his injury and the accident.

41. For all those reasons, it seems to me that the appeal must be allowed and that the findings of unfair dismissal in relation to each of those three allegations must be set aside.

42. So far as the challenge to the finding that the Claimant was wrongfully dismissed is concerned, at paragraphs 114 and 115 the Tribunal held that for the same reasons as already expressed the Claimant had not committed the misconduct alleged against him. At paragraph 116 the Tribunal explained in summary its reasons that there was ample evidence that the Claimant suffered an injury and was gradually recovering from it and no evidence that his injuries were the result of some other incident. So far as exaggeration of the injury was concerned, the Tribunal held:

“117. … there is no evidence that he was ever able to sit for long periods of time such as to be able to resume normal duties as a bus driver. I therefore did not find that he had exaggerated his lack of ability to return to those duties.”

43. Mr Ohringer argues on the Claimant’s behalf that the question of repudiatory conduct requires conduct that is so serious that it strikes at the foundation of the employer/employee relationship and that the question here was one for the Tribunal. If the Respondent did not have grounds to uphold the allegations themselves and advanced nothing new, then it is no surprise that the Tribunal reached the conclusion that it did in relation to wrongful dismissal.

44. For the reasons I have given in relation to the unfair dismissal grounds, it seems to me that the wrongful dismissal finding cannot stand. The Employment Judge made the same errors in relation to wrongful dismissal as he did in relation to unfair dismissal in the sense that he was evaluating the conduct by reference to the Claimant’s ability to perform his job as a bus driver sitting for long periods rather than by looking at whether what the Claimant did amounted to deliberate exaggeration, misleading his employer and the Occupational Health doctor. Mr Ohringer faintly suggested that absence from work based on an assertion that one is unfit to work might give an employer grounds to dismiss, but would not necessarily amount to gross misconduct. I disagree: an employee “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.

45. Had the Tribunal assessed the Claimant’s conduct by reference to the reasons relied on both by Mr Moran and Mr Harris the only conclusion available in light of the Tribunal’s findings was that the Claimant was guilty of serious misconduct that did amount to a fundamental breach of contract. Accordingly, in my judgment, this ground of appeal succeeds, and the conclusion that this was a wrongful dismissal also cannot stand.

46. I turn briefly to address the question of contribution which does not strictly arise in light of my conclusions on unfair and wrongful dismissal. Whether a Claimant has caused or contributed by his actions to a dismissal such as to entitle a Tribunal to reduce the compensation to which he would otherwise be entitled is a question of fact. It is well established that the conduct that can be relied upon for these purposes extends to any conduct of the Claimant before his dismissal that caused or contributed to it, provided that the evidence demonstrates that the conduct is culpable and played a part in the dismissal. As to what can properly be characterised as culpable, this was dealt with by the Court of Appeal in Nelson v BBC [1979] IRLR 346 at paragraph 44. Nelson is also authority for the well established proposition that a decision of an Employment Tribunal on the amount of reduction for contributory conduct can only be interfered with on appeal in an exceptional case where it is an error of law.

47. The Tribunal found that the Claimant’s conduct involved exaggerating of his symptoms and that misled the doctor and the Respondent. Mr Ohringer points to paragraphs 24 and 28, where the Judge recorded what was shown in the video footage, and also the passages where Dr Kahtan’s findings are set out. He says by reference to those passages and others that at no stage did the Employment Judge make findings that what the Claimant did, whether by exaggeration or otherwise, was done deliberately.

48. I disagree. The Employment Judge expressly found this to be culpable at paragraph 112. True it is that he did not explain in any detail why, but it is hard to see, as Mr Ohringer accepted, how exaggeration can be culpable if it is unconscious. The hypothetical case advanced in the course of argument of a melodramatic person exaggerating their injuries is not this case. In my judgment, it is implicit in the Tribunal’s findings that the Claimant had deliberately exaggerated his symptoms. There was on the Tribunal’s findings ample evidence in the video footage to support that. Such conduct is plainly culpable if it is deliberate and where it is to any extent causative of the dismissal it amounts to relevant contributory conduct. Here, the Tribunal found that it led to dismissal. This is not, accordingly, a case where the Tribunal failed to consider whether there was culpable causative behaviour, although I accept that its reasons for doing so could have been better spelled out.

49. Once blameworthy conduct and causation were established, it was for the Tribunal to assess the amount of the reduction that the Judge regarded as just and equitable. I have set out the principles and the limited scope for appellate interference with such an assessment. Perversity is alleged here by the Respondent but not by the Claimant. That is a particularly high hurdle to surmount in the context of an evaluative assessment based on impression, opinion and judgment. If the appeal on unfair dismissal and wrongful dismissal had failed, I would not have interfered with the Employment Judge’s assessment.

50. Finally, in relation to remedy (also academic) had it arisen for consideration, ground 1 would have succeeded in the light of the Respondent’s concession. It seems to me the Employment Judge clearly made an error. So far as ground 2 is concerned, persuasive as Mr Solomon’s argument was, it is difficult to see how the Tribunal could have concluded that a fair dismissal could take place within the period identified, and proper notice could have been given in that self same period. I would accordingly have allowed Mr Ohringer’s appeal on ground 2.

Costs

51. The Respondent applies for its fee costs in the sum of £1,600 under Rule 34A(2)(a). That is a costs order to which different principles apply than the broader powers that exist for awarding costs in a case where there has been unreasonable, improper or vexatious behaviour. Moreover, following other decisions of this Appeal Tribunal, which are not necessarily binding on me but which, in my judgment, are right, the discretion of the Tribunal is not the broad discretion urged on me by Mr Ohringer. This Rule looks simply at the question of repayment of fees that it was necessary to pay to bring the appeal, and there is a presumption that the unsuccessful party will pay those fees in respect of the successful party.

52. In this case, I am satisfied that the Claimant has done more than simply be brought here by a Respondent seeking to overturn the decision. Not only has he actively resisted the appeal but he has advanced arguments by way of Respondent’s Notice and cross-appeal. This is not simply a case of a Claimant who was successful before the Tribunal doing the minimum to hold onto that decision. The only way in which the Respondent could challenge the decision was by bringing this appeal, and it seems to me that the power to order repayment is engaged.

53. However, I am also satisfied that the provision in Rule 34B(2) applies to any costs order I might consider making here. In other words, I am entitled to have regard to the paying party’s ability to pay when considering amount. I am satisfied, having heard Mr Ohringer’s account of the Claimant’s means and his net income and outgoings, that there is very little left for him after paying rent, repayments on his credit card and providing financial support to his five children ranging from 2 to 19. Taking a broad-brush approach and bearing in mind the objective of Rule 34A(2)(a), but also having regard to the Claimant’s means and doing justice as between the parties, the Claimant should pay the sum of £400 in respect of the appeal fees, and that is the order I accordingly make.

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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ajaj v Metroline West Ltd (Unfair Dismissal) [2015] UKEAT 0295_15_0312 (03 December 2015) URL: http://www.bailii.org/uk/cases/UKEAT/2015/0295_15_0312.html Cite as: [2015] UKEAT 295_15_312, [2015] UKEAT 0295_15_0312

United Kingdom Employment Appeal Tribunal