Case law: dismissal after secret filming of "sick" employee fair

A recent case gives useful guidance on how to deal with workers suspected of malingering.

Following an anonymous tip-off by a co-worker, an employee off sick with long-term back problems was videoed three times, including while loading and unloading shopping from the boot of his car. Having seen the video, the employer obtained a medical opinion from its occupational health adviser, but did not take a statement from the co-worker, or seek a consultant's opinion.

The employer held an investigative meeting, at which the worker said that the activities videoed were consistent with his GP's advice to keep active. He was suspended, and a letter obtained from his GP. The employer's occupational health adviser commented on it, and stuck to his original opinion that the worker's activities were inconsistent with his claim to have a bad back. A disciplinary meeting was held and he was dismissed for dishonestly saying he was sick.

The employee sued the employer for unfair dismissal and won, partly on the grounds that the employer should have sought medical advice from a consultant and taken a statement from the co-worker to check he had not made the tip-off out of malice. But the employer appealed, and the case went to a new tribunal. This time, the employee lost.

The Employment Appeal Tribunal (EAT) explained why, providing useful information for employers:

• The initial tribunal had not considered every part of the employer's disciplinary process and had not taken into account, among other omissions, several further investigations. This confirms the importance of employers running the disciplinary process correctly from the start, including the suspension procedure.
• The decision not to get evidence from a medical consultant was reasonable, because the employee had not been referred to a consultant himself, and the firm used its own occupational health consultant. This reinforces how important it is for employers to use the right medical experts.
• The anonymous tip-off was not part of the investigation - it merely triggered it. The valid evidence the employer subsequently obtained that led to the worker's sacking was not based on it. Therefore asking the co-worker for a statement about his personal motives was irrelevant, because the tip-off wasn't part of the investigation. The EAT also pointed out that the penalties for gross misconduct should not be waived just because of how misconduct has been discovered. However, if an employer needs to rely on evidence within a tip-off, a witness statement should be taken. Employers should also be aware that secret surveillance of an employee might be subject to Data Protection restrictions.

Operative date: Immediate