A business that became suspicious that an employee who was disabled with back pain was being dishonest about his symptoms and instructed an external company to carry out covert surveillance has been found to have unfairly dismissed and discriminated against the employee.
Amongst other things, the employer dismissed the employee for gross misconduct for fraudulently claiming sick pay.
So, what happened in the case of Kerita v BMW UK?
- The facts of the case
- What the judge said
- Practical points for your business
1. The facts of the case
The employee had worked for the business for years as an assembly associate in a physically demanding role. He had a history of back pain, related sickness absence, and there were ongoing issues around what tasks he was fit to do, as well as reasonable adjustments.
The business had a contract with an external provider for on-site physiotherapists, one of whom emailed a manager to say the employee had been signed off work for another two months by his GP and would be receiving specialist support with pain management.
Shortly after, the physiotherapist had a conversation with the manager, saying that he couldn’t explain the level of pain the employee was experiencing or why he remained unfit for work and that there were inconsistencies in what the employee was saying. This raised suspicions with the employee’s managers, and they took the unusual step of hiring an external firm to carry out covert surveillance on the employee.
The footage obtained showed the employee walking about 3 miles over an hour and a half. Managers felt this contradicted what the employee had told them. The employee attended a final meeting with the on-site physiotherapist at which his fitness to work was not questioned.
The employee was invited to attend a disciplinary hearing for fraudulently claiming sick pay; the gross misconduct allegation was found proven, and the employee was dismissed. His appeal was unsuccessful.
The employee brought a number of employment tribunal claims, including that he had been unfairly dismissed and that the dismissal was an act of direct disability discrimination.
2. What the judge said
The employee succeeded in the above claims for reasons including:
(a) Unfair Dismissal
- There were no reasonable grounds for the belief that the employee had fraudulently claimed sick pay. There was no evidence that the employee was fit for work; the employee had at all times been certified unfit for work by his GP, which had been accepted by the on-site physiotherapists and the employer. “As the employee was entitled to sick leave and sick pay, he could not have made a fraudulent claim for sick pay”. Furthermore, the employee was not even receiving any sick pay during the time period in question, as entitlement had been exhausted.
- The judge said that, “even if the [employer] meant to say that the [employee] had dishonestly exaggerated the extent of his symptoms, the [employer] did not have reasonable grounds for that belief when the information provided by the [employee] about the effect of his back condition on his ability to walk which was available to the [employer] at the disciplinary hearing is viewed fairly and as a whole. The [employee]
had not said he was unable to walk more than a short distance. He had said walking a short distance caused pain, dizziness and feeling sick, but that those treating him had advised him to push through the pain.
- The employer failed to carry out a reasonable investigation, which included not properly reviewing what the employee said about the effect of his back pain on walking. The judge commented that a reasonable employer would have put their concerns to the employee in an investigation meeting or in a physiotherapy appointment.
(b) Direct Disability Discrimination
The employee’s dismissal was found to be an act of direct disability discrimination. It was unfavourable treatment. The judge commented that it could be inferred that the employee’s dismissal was because of the disability of back pain:
“…that the employer’s managers had a level of distrust or hostility towards associates with back conditions, and were unwilling to take their word for it that they had a back problem, or were quick to conclude that a person with a back condition was not being honest about their symptoms. We could infer that the [employer] would not have formed the same view of an employee who had another health condition”.
This was based on actions of the business including a manager telling the employee “they could not just take an associate’s word for it that they have a back problem, and they can only take this more seriously when they have a medical report with an MRI scan” and managers taking the “highly unusual step of obtaining covert surveillance to test their view that the employee wasn’t being honest about his symptoms, without speaking to the employee about their suspicions, and while at all times the employer’s physiotherapists accepted that he was unfit for work”.
Against this background, the employer had the burden of showing that the dismissal was unconnected to the employee’s back condition, which they were unable to do.
3. Practical Points for Your Business
As this case highlights, managing sickness absence and illness in the workplace can be tricky, and it’s important to get it right. Here are three practical takeaways for your business:
- Carrying out covert surveillance of a disabled employee due to concerns around sickness/absence is a highly unusual step and will rarely be appropriate.
- Most sickness absences will be genuine, however, if you do have reasonable grounds to suspect that an employee in your business is ‘abusing sick leave’, it’s vital to handle the situation carefully, objectively and appropriately. If you have concerns, your first step should be to get in touch for specific advice on the facts of your situation.
- It’s vital to get the ‘facts right’ when it comes to managing sickness absence, particularly if it is long-term or involves short-term, frequent absences. In many such cases, up-to-date medical advice and discussion/consultation with the employee will be important features of safe and appropriate sickness absence management. Bear in mind that before asking an employee’s GP / consultant, etc, for a medical report, you must get permission from the employee. We have forms available to help you with this, so please get in touch should you need support in this area.
Have an HR matter you would like assistance with? Please don’t hesitate to contact us as we are happy to help.