Duvet Days – Breach Of The Employment Contract
Duvet Days – A Dishonest And Fundamental Breach Of The Employment Contract
April 12, 2016 – The recent ruling in Metroline West –v- Ajaj [UKEAT/0185/15/RN] has confirmed that where an employee “pulls a sickie” this amounts to a dishonest and fundamental breach of the employment contract.
The Employment Judge assessed the Respondent’s genuine belief in the Claimant’s misconduct by reference to capability considerations that were irrelevant and impermissibly substituted his own view. Further, having concluded that the Claimant exaggerated the effects of his injury and the accident, and that this was culpable and misleading, it was perverse for the Employment Judge to hold that the dismissal was unfair and wrongful.
The conclusion that the Claimant contributed to his dismissal by reference to his culpable and misleading exaggeration of the effects of the accident and injury was open on the evidence and findings and not in error of law.
Other matters raised by appeal and cross-appeal were rendered academic by those conclusions.
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 shall be referred to as the Claimant, and the Appellant in one aspect of this appeal, as the Respondent.
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.
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