An Employment Tribunal has recently held that where the employer used surveillance film at a disciplinary hearing and made the decision to dismiss on the basis of that film, that it had unfairly dismissed the employee.
The employee had sustained a back injury at work and he was signed off sick by both his GP and the employer’s occupational health doctor. The employer’s insurers were sceptical about his injuries and arranged a private investigator to follow and film him. During the surveillance the employee carried out various activities including walking his dog, carrying shopping, driving his car and clearing ice from his car.
On the basis of that surveillance video he was dismissed for gross misconduct on the basis that he had been falsely claiming company sick pay while he was fit for work.
During the disciplinary hearing he was shown the surveillance video and he told his employers that his GP had advised him to take light exercise and to do as much as possible and therefore his activities were not inconsistent with the advice that he had got from his GP. It is to be noted that the film did not show him moving any heavy weights or undertaking any arduous tasks.
The employer asked the GP to comment on what the employee had said at the disciplinary hearing. The GP took the view that the employee was genuinely in pain but confirmed that he did recommend that the employee do back exercises and walk if he was able to do so.
The employee was dismissed and the Employment Tribunal came to the conclusion that the employer’s investigation had been wholly inadequate and that no reasonable employer would have come to the conclusion it did on the basis of the investigation. One point that the Employment Tribunal raised was that the employer did not ask its occupational health doctor to review the surveillance video and therefore the decision to dismiss the employee was based on a lay person’s consideration of the film.
This case illustrates the importance before dismissal in circumstances such as these of obtaining clear medical advice from an expert.
