20 July 2011

You’ve been framed!

A recent case involving surveillance of an employee on sick leave serves as a useful reminder that relying on video evidence to decide whether an employee is genuinely sick can be a risky business, as Sara Sawicki explains

Many employers are faced with the difficult situation of what to do if they believe an employee is 'swinging the lead' and claiming sick pay in circumstances where it might seem there is nothing wrong with them and/or the symptoms have been exaggerated. One option available to employers is to monitor the employee by means of surveillance. There have been a number of cases on the rights and wrongs of surveillance over the years and the recent case of Pacey v Caterpillar Services (UK) is a reminder to employers that relying upon surveillance material alone should be treated with care.

Mr Pacey worked for Caterpillar for over 11 years until he was dismissed in March 2010. Pacey had a good record with Caterpillar; he had no disciplinary record or excessive absences. In November 2009, while at work, he suffered a back injury. Pacey was seen by Caterpillar's occupational health doctor who confirmed that he was not fit for work. Pacey also saw numerous GPs who also confirmed that he was not fit for work. Caterpillar and its insurers were suspicious about the accident in November. The insurers therefore arranged for an investigator to follow Pacey and video him. The videos showed Pacey clearing ice from his car, driving his car, carrying shopping and walking his dog. In particular he was seen bending down to the dog and throwing an object for his dog to fetch. When Pacey returned to work, he attended a meeting with Caterpillar to record his account of the accident and his injury. At the meeting, Pacey was handed a letter that suspended him from work on an allegation of gross misconduct for falsely claiming company sick pay while fit for work. Pacey was invited to an investigation hearing and was shown the surveillance video. In his defence, he stated that he had followed his doctor's advice to take light exercise and that there was nothing on the surveillance video that was contrary to what his doctor had advised. Caterpillar did not carry out any further medical investigation in relation to Pacey's defence and ultimately decided to dismiss him for gross misconduct as, based on the surveillance evidence, they decided that his claim was exaggerated and false. Pacey brought a claim for unfair dismissal.

The tribunal upheld Pacey's claim. It held that the reason given by Caterpillar for dismissal was not a genuine and true reason, and it therefore followed that it was an unfair dismissal. The tribunal held that the investigation that was undertaken was totally inadequate and no reasonable employer could have come to the same conclusion on the basis of that investigation. One of the points the tribunal focused on was the fact that they found it completely incomprehensible that Caterpillar would dismiss someone on an allegation that they were fraudulently claiming to be ill without getting medical evidence. The tribunal stated that Caterpillar had its own occupational health doctor who had previously seen Pacey, yet it made no attempt to get that doctor to look at the surveillance. The tribunal also found it incomprehensible that Caterpillar decided on non-medical consideration alone that somebody was falsely claiming to be sick.

Advice to employers
In most cases, the surveillance gathered on employees on sick leave is done by the insurers. This evidence can be tempting for an employer to use. While there is nothing wrong in principle about using such evidence as part of the employer's overall investigation, the employer should ensure that any decision to use the evidence is based on credible facts and not mere speculation. In addition, employers should not rely solely on the evidence obtained through such surveillance – particularly where the significance of such evidence is challenged by the employee, as was the case here. In such circumstances, the material should be passed on to a relevant medical expert for consideration and assessment of the employee's health. The medical expert's report will not be conclusive, but it should inform the decision taken by the employer on whether or not the employee is in fact swinging the lead.

Sara Sawicki is a partner at law firm Pinsent Masons: www.pinsentmasons.com

Sara Sawicki

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