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Covert surveillance during sickness absence

Posted on 12th May 2011
Case law

An employee's dismissal was unfair where an employer relied upon covert surveillance of the employee's activities during a period of absence.

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CLS had not acted reasonably in dismissing as they did not ask OH to review the surveillance and comment on whether the activities were consistent or he was falsely claiming sick pay

Pacey v Caterpillar Logistics Services (UK) Ltd ET3501719/10

Background

Mr Pacey (P) was involved in an incident at work and was off work for just over a month. His employer, Caterpillar Logistics Services (UK) Ltd (CLS), sent P to their Occupational Health (OH) provider and they agreed that he had a back injury. Approximately three weeks later CLS and their insurer arranged for covert surveillance over three days. The surveillance showed P, for example, clearing ice from his car, driving his car, carrying small shopping bags and taking his dog for a walk. P was suspended from work and it was alleged that he had falsely claimed company sick pay during the period of his absence. 

The decision

The employment tribunal were happy to view, consider and rely on the covert surveillance when reaching its conclusions but they found the dismissal unfair. One of its reasons for concluding that CLS had not acted reasonably in dismissing P was that they did not ask OH to review the surveillance and comment on whether P's activities were consistent with his injury or whether he was falsely claiming sick pay. They considered this to be 'completely incomprehensible'.

In practice

Surveillance is becoming ever more common and employers are keen to rely on it, thinking that the surveillance footage speaks for itself. This case indicates that employment tribunal's may not agree and seemingly will expect employers to obtain medical evidence before they reach any conclusions on whether the employee is acting inappropriately in anyway. This is not to say that medical evidence will be required in all cases, but employers should not jump to conclusions.

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