An employee who won his claims of unfair dismissal and disability discrimination in an Employment Tribunal has agreed a substantial settlement with this former employer who dismissed him for gross misconduct after spying on him when he was on sick leave.
Mr Jones was employed by Pilkington UK Ltd for nearly 36 years until he was dismissed in October 2019 because his employer believed he was falsely claiming he was unfit to work.
In 2006, Mr Jones began to suffer the symptoms of a condition that was later diagnosed as radiation induced neuropathy – a painful, chronic and progressive condition caused by the side effects of cancer treatment he had received when he was aged 21.
By 2018, Mr Jones was also suffering from mental health issues as a result of his physical disability and associated pain.
In November 2018, Mr Jones went onto long term sick leave due to his physical condition and during this time he received support for his mental health. He was advised by his doctors in September 2019 that because of his physical and mental ill health, he was not able to return to work and would not be able to continue in his manual job at Pilkington.
In March 2019, an employee of Pilkinton told management that they had seen Mr Jones at a farm wearing work boots. Suspecting that Mr Jones was working whilst signed off, his employer decided to instruct a surveillance company, amusingly called “Mike India 5 agents” to observe Mr Jones’ activities. After four days of surveillance by the agents, Mr Jones had been recorded accompanying his farmer friend in a van, handling a small bag of potatoes and passing a watering hose.
As a result of this footage, Mr Jones was invited to a disciplinary investigation to discuss his employer’s belief that he was undertaking secondary employment during sickness absence, whilst in receipt of Occupational sick pay, a practice that was prohibited under its rules and procedures.
At the investigation meeting, Mr Jones explained that he had been encouraged to go to his friend’s farm by his mental health advisors to assist with his anxiety and reduce his sense of isolation. He said he was not allowed to do anything strenuous by his friend and did not.
Despite Mr Jones’ explanation, he was later dismissed for gross misconduct for undertaking physical activity whilst claiming he could not attend work and receiving occupational sick pay.
Mr Jones subsequently brought claims against Pilkington for unfair dismissal and discrimination arising from disability under the Equality Act 2010.
Mr Jones succeeded in his claim of unfair dismissal and discrimination arising from disability in the Employment Tribunal.
The Tribunal said that Mr Jones had been dismissed for something arising from his disability because he was dismissed based on his employer’s suspicion that he was undertaking physical activity at the farm while off sick.
The Tribunal did not accept the employer’s argument that the dismissal was justifiable because they had a legitimate aim in ensuring the sickness absence procedure was adhered to and that their generous sick pay scheme was not abused. The Tribunal said that the decision to dismiss was not justified because the employer had failed to obtain advice from an appropriate medical adviser once the surveillance footage was obtained. The Tribunal said this should have been done to ensure a fair consideration of the allegations of abuse and to avoid circumstances arising where managers who are medically unqualified might reach a wrong conclusion where an alleged abuse was discovered.
The Tribunal also concluded that Mr Jones had been unfairly dismissed. The employer had not obtained appropriate medical advice and had not considered whether there were alternative explanations for what could be seen in the surveillance footage. The decision to dismiss fell outside the range of reasonable responses available to the employer.
Following Mr Jones’ successful claims, he eventually reached a settlement with his former employer to the tune of £329,000 including compensation for lost earnings.
The case is a useful reminder of how appearances can be deceptive and employers should not jump to the conclusion that if an employee on sick leave is observed to be undertaking activities that appear inconsistent with sickness, they are faking their illness or exaggerating their symptoms. Obviously there will be exceptions (the ones that tend to get reported by the media) but, in our experience, they are few and far between.
As with all cases where misconduct is suspected, the key is to carry out a full and fair investigation and to take care in the methods of investigation used, recognising that methods which intrude on privacy, like covert surveillance, should be used as a last resort – only when necessary and after other, less invasive measures have been fully considered.
The case also highlights how important it is for employers to obtain the opinion of a medical adviser in all cases of long-term sickness absence, whether as part of an investigation into alleged abuse of sickness absence or as part of the sickness absence management process. Medical advice is essential for employers to make informed and fair decisions. As this case demonstrates, the risk of not taking expert medical advice is that wrong conclusions are reached by managers who are not medical qualified which, in turn, can lead to financial and reputational repercussions.
You can read the full judgement in this case here:
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