In this article...

• The background
• The facts
• The tribunal’s decision
• The EAT’s decision
• What does it mean for me?

Sarah Michael considers a recent decision of the EAT concerning the sufficiency of an employer’s investigation into the conduct of an employee who was dismissed for malingering. The case contains some useful pointers for employers as to whether informants should be asked to provide statements and the type of medical evidence that needs to be obtained.

The background

Managing long-term or persistent sickness absence presents a number of challenges for HR professionals. The difficulties are particularly acute where there is a suspicion that the individual concerned is not genuinely ill but is malingering. In these circumstances, the employer may wish to treat the matter as one of potential misconduct.

In the recent case of Corus UK Ltd v Mainwaring, the Employment Appeal Tribunal (EAT) considered whether an employer had conducted a reasonable investigation into allegations of malingering.

The facts

Mr Mainwaring was employed as a crane driver by Corus UK Ltd. In 2002 he began to suffer from back problems, which resulted in a significant amount of sickness absence. In January 2006 he again went off sick and consulted his GP, who prescribed medication and physiotherapy. His GP advised him to keep active but to avoid lifting heavy objects and sitting in one place for long periods.

At regular intervals during his absence Mr Mainwaring saw Corus’s occupational health adviser, Dr Bevan. By 16 March 2006 his condition had improved to the extent that, although he was not yet fit for work, Dr Bevan concluded that he would be able to return to light duties in two weeks’ time.

Meanwhile, in early March, Corus had received a tip-off from someone in Mr Mainwaring’s team suggesting that his behaviour outside work was inconsistent with his alleged back problems. Corus did not take a witness statement from the informant but arranged covert video surveillance of Mr Mainwaring. The resulting video footage (obtained on 9 and 16 March) showed Mr Mainwaring loading and unloading shopping into and out of the boot of his car.

Corus sought Dr Bevan’s opinion as to the significance of the video footage. Dr Bevan concluded that the activities shown were incompatible with Mr Mainwaring’s alleged condition. If Dr Bevan had known that Mr Mainwaring was capable of performing these tasks, he would have recommended an immediate return to normal duties.

An investigatory meeting took place on 27 March. Mr Mainwaring and his union representatives were shown the video footage and Dr Bevan’s report was read to them. Mr Mainwaring’s response was that he was improving, had been doing exercises and was not prevented by his symptoms from acting as shown in the footage.

On 7 April there was a disciplinary hearing and Mr Mainwaring was dismissed on the ground that he had dishonestly represented himself as unfit for work. His appeal against dismissal was unsuccessful and he brought a tribunal claim for unfair dismissal.

The tribunal’s decision

The employment tribunal found that the dismissal was unfair. One of the key reasons for its decision was that Corus had not taken a statement from the individual who had provided the tip-off. In the tribunal’s view, this fell outside the range of reasonable responses. The employer could have taken a statement on an anonymous basis, and should have considered, in particular, whether there was any ill-feeling on the part of the informant that might have led to the complaint being made.

The tribunal also thought that it was unreasonable for Corus not to have considered obtaining the advice of a back specialist before dismissing Mr Mainwaring. It noted that Dr Bevan was a GP, not a specialist.

Corus appealed to the EAT.

The EAT’s decision

In the EAT’s view, the tribunal had erred in finding that the employer should have taken a statement from the informant. The tip-off was no more than a trigger for the investigation; there was no indication that Corus had relied on what the informant said in reaching the decision to dismiss. In these circumstances, the absence of a statement was not relevant to the reasonableness of the employer’s investigation.

With regard to the sufficiency of the medical evidence, the EAT accepted that, in the context of a personal injury claim, an allegation of malingering would probably need to be referred to a consultant. The present context, however, was very different. Although some employers might have considered seeking a consultant’s view, it could not be said that no employer would be acting reasonably if, having taken advice from an independent occupational health adviser, he failed to obtain a consultant’s report.

The EAT accordingly allowed the appeal and remitted the case for re-hearing by a freshly constituted tribunal.

What does it mean for me?

		An employer does not always need to take a full statement from an informant where allegations of misconduct are made. It is important to note, however, that in this case the tip-off was simply the trigger for the investigation into the alleged malingering. The position is likely to be different where a tip-off contains substantive information or influences the disciplinary outcome. In that situation, the employer will usually be expected to explore the informant’s motives to ascertain whether there is any ill-feeling or personal animosity.
		Nor does an employer invariably need to obtain a consultant’s report before rejecting an employee’s assertion that he or she is medically unfit for work. In this case, the evidence of a GP and an occupational health adviser was sufficient. It is significant, however, that the employee alleged that he had back pain – a condition which most GPs and occupational health advisers deal with on a daily basis.
		The employer in the instant case relied on video surveillance to establish that the employee was not medically unfit for his duties, as he claimed. While no doubt this provided valuable evidence, employers should remember that covert surveillance can infringe an employee’s right to privacy or give rise to data protection issues. For that reason, it should not normally be undertaken without first seeking legal advice.