Facts
Mr Mainwaring (M) was employed by Corus as a crane driver and had been employed by the company for over 30 years. In 2002, he began to suffer from back problems and was off work that year for 137 days. In 2005, he was off for 100 days. In late January 2006 he went off work again. His GP prescribed medication and physiotherapy and advised him to keep active, to perform normal activities as pain permitted and to avoid heavy lifting and sitting in one place for long periods.
Corus’ occupational health advisor (OHA), Dr Bevan (B) saw M regularly during his absence, including on 9 and 16 March 2006. By 16 March, his condition had improved to the extent that, although not yet fit for work, B thought M would be able to return to light duties in two weeks’ time.
Early in March, Corus received an anonymous tip-off from one of M’s colleagues, suggesting that, outside of work, he was behaving in a manner inconsistent with someone who was off work with back problems. Corus did not take a witness statement from the informant but decided to undertake covert surveillance of M on 9, 15, and 16 March (two of these dates were therefore the same dates upon which M had seen B).
The resulting video footage showed M: on 9 March loading shopping into the boot of his car in a supermarket car park; on 15 March, walking along a street on the way back from a betting shop; and on 16 March, unloading shopping from his car at home. Corus sought B’s opinion on this footage.
On 22 March, B confirmed that he had seen M on 9 and 16 March, had certified him as unfit for work on the former occasion and unfit but able to return to light duties in two weeks on the latter occasion. He concluded that if in fact had M been suffering with back pain, he would not have been capable of putting bags in and removing them from the car – the bending and reaching into the car would have caused him considerable discomfort and pain. As to the footage of M walking down the street, contrary to what he would have expected, M displayed no obvious signs of back pain, which he would have expected. Even if his condition was improving, he should not have been moving as freely as was shown in the video. As for shopping at a local supermarket and removing bags from his car boot on 16 March, B noted M was showing no signs of pain, and should not have been carrying these bags even if his condition had improved. B concluded that had M informed him that he could undertake those tasks, he would have recommended that M was fit for work, with no restrictions being placed on him, with immediate effect.
An investigatory meeting took place on 27 March with M and his union representatives. They were shown the video footage and B’s report was read to them. M said he was improving at the time of the footage and his symptoms did not prevent him from carrying out those activities. M was suspended pending the outcome of the investigation.
Corus then received a letter from M’s GP dated 28 March 2006, which stated that he had been advised to remain mobile and do light exercise to strengthen his back, and stating that he was currently fit for light duties. B was then asked to provide a fuller statement and did so on 30 March. He concluded that on both consultations which took place on 9 and 16 March, M had demonstrated poor movement and was in pain and had led him to believe that he was unfit to return to the workplace due to these poor movements. He had based his assessment on this information. However, the video footage, some of which was taken on the very same days, showed his movement was not restricted and there was therefore no reason why he could not have returned to his workplace during this period. Even if he had been taking pain medication, he would not have been able to undertake the videoed activities of 9 and 16 March with the back issues he had presented to him.
M attended a disciplinary hearing on 7 April, He was dismissed on the ground that he had dishonestly reported himself as unable to work through illness when he was fit to work. M unsuccessfully appealed against his dismissal. The manager hearing the appeal spoke again to B and obtained a further letter from M’s GP. That letter was put before B, but he remained resolute that, had he seen the video on 9 and 16 March, he would not have signed M off as unfit for work.
Employment tribunal’s judgment
The tribunal found that the dismissal was unfair. It concluded that Corus had made its mind up to dismiss prior to the disciplinary hearing. Its investigation was not reasonable because no statement had been taken from the informant. Furthermore, M’s permission to seek a GP’s report should have been sought and a specialist in back conditions should have been consulted. As such, Corus did not have reasonable grounds upon which to reach its conclusions.
Conclusions of the EAT
Corus appealed to the EAT. The two key aspects of its decision were as follows.
First, there is no obligation for an employer to take a statement from a person who tips-off an employer about possible malingering, if that statement is not relied upon by the employer in reaching its decision to dismiss. In this case, the informant’s tip-off had acted as a trigger for the employer to carry out its own investigations. In reaching its decision to dismiss, it had relied on the video footage, and B’s medical opinion in light of seeing that evidence. It had not relied on anything said or done by the informant.
Second, the EAT concluded that in the context of internal disciplinary proceedings, given that Corus had already sought and obtained the advice of an OHA, it was not outside the range of reasonable responses for Corus not to seek a report from a consultant. M's back problem was one with which B would deal on a day-by-day basis, and M had never been referred to a consultant or other specialist by his GP.
The EAT sent the case back to be reheard by a new employment tribunal.
Comment
This case turns on its own particular facts, in that this employee had been to see the company’s OHA on the very same day that covert surveillance on behalf of his employer was undertaken. It is, however, useful in two ways.
First, where an employer wishes to rely on a tip-off, by an employee or by someone else, in reaching its decision to dismiss, it should investigate its accuracy. If it can show, however, that the tip-off acted purely as a catalyst for its own proper investigations (such as, in this case, instructing a third party to undertake surveillance of the employee), the employer need not investigate the tip-off or the informant's motives in making his or her statement.
Second, this judgment is also important in that it highlights an issue that arises frequently in practice - an OHA’s report conflicts with that of the employee’s GP. As we recommend in chapter 16 of EEF’s publication, ‘Managing Sickness Absence - a toolkit for changing work culture and improving business performance’, employers in those circumstances should ask their own medical adviser to try and resolve the difference of opinion, or narrow down the issue in conflict, or consider seeking a third opinion. Employers can, however, rely on the evidence they believe to be the most credible, provided they have reasonable grounds for that belief.
On a separate note, employers should be aware that there are legal issues associated with covert surveillance of an employee. We deal with these issues in the context of an employer suspecting abuse of its sick pay scheme at chapter 18 of the Managing Sickness Absence Toolkit. The Toolkit also contains a ‘covert surveillance checklist’ for you to use (tool 18.5).