Managing sickness absence: can you spy on an employee who is off sick?

That is what happened in Mr M Kerita v BMW (UK) Manufacturing Limited when concerns were raised about alleged inconsistencies in the employee's statements about their health. This article explores this case and provides tips for employers when managing sickness absence.

Facts

Mr Kerita worked as an assembly associate for BMW, a physically demanding job building cars. After years of back pain, and various absences from work, an MRI scan confirmed he had a protruding disc which was impinging on a nerve. An occupational health assessment said his role exacerbated it, recommended a workplace assessment to identify lighter duties, and that he was likely disabled under the Equality Act 2010. However, no changes were made to his duties.

When Mr Kerita felt a terrible pain in his back at work, he was signed off for about a month. This absence triggered a stage 1 absence review meeting where he was issued a warning with a 12-month review period. About six months later, while moving a large metal wheel, he experienced severe pain in his lower back, felt dizzy, vomited and fell to the floor. He was taken to hospital by ambulance and signed off sick - he didn't return to work. 

During a conversation between one of the company physiotherapists and Mr Kerita's line manager, the physiotherapist noted that the treatments didn't appear to be working, expressed surprise that Mr Kerita had not yet returned to work, and said they were unable to explain the severity of his pain or why he couldn't return. The physiotherapist suggested there might be some inconsistencies. This prompted BMW to instruct G4S to carry out surveillance on Mr Kerita.

The surveillance operative filmed Mr Kerita, from behind, walking approximately 3 miles over roughly 1.5 hours and bending down once to examine the side of a car. The report, provided alongside the filming, said there was no indication that Mr Kerita had lower back, leg or shoulder pain or was experiencing sickness or dizziness. 

Mr Kerita was invited to a disciplinary hearing for allegedly fraudulently claiming company sick pay and because of his unacceptable levels of absence. During the hearing, his union representative clarified that Mr Kerita never claimed he couldn't walk. Instead, he experienced pain while walking, worsening the more he walked. However, he was dismissed for gross misconduct. 

Mr Kerita appealed. The appeals procedure, set out in the collective agreement between BMW and Mr Kerita's union, said “Dismissals will not be implemented prior to the appeal being completed. Associates will remain on full basic pay pending their appeal.” However, the dismissal letter did not refer to this and he was not paid while waiting for the appeal. 

Mr Kerita informed HR that he would be abroad due to family issues and would notify them upon his return, remaining contactable via email. However, the invite to the appeal hearing went out in the post while he was still away. The meeting was rescheduled, but he was notified via email only two days before and couldn't attend due to a pre-booked appointment. An HR officer said that Mr Kerita had left the country without permission, and the appeal hearing proceeded in his absence, upholding the decision to dismiss. 

Mr Kerita brought claims for failure to make reasonable adjustments, direct discrimination, discrimination arising from a disability, unfair dismissal and wrongful dismissal. 

Employment Tribunal

Unfair dismissal 

The tribunal determined that Mr Kerita was dismissed for alleged misconduct, a potentially fair reason for dismissal. While the disciplinary officer believed Mr Kerita had fraudulently claimed sick pay, the tribunal found there was no reasonable grounds for that belief. The managers had assumed Mr Kerita was unable to walk for more than 20-30 metres. They saw the surveillance video as contradicting what he had told them. However, Mr Kerita had regularly explained that he experienced pain, sickness or dizziness after walking for some time, not that he was unable to walk. The tribunal noted that the footage only captured his back, so it was difficult to assess his pain without seeing his face. He was entitled to be off sick and receive any sick pay due to him. In any event, the tribunal noted that given he was not receiving sick pay at the time of the surveillance or dismissal, he could not fraudulently claim it.

The tribunal also found that BMW failed to carry out a reasonable investigation. It didn't consider what Mr Kerita was saying, didn't look at whether he was receiving sick pay, and just went straight to the disciplinary hearing. The way the appeal was dealt with also deprived him of the opportunity to put his case forward. There were fundamental procedural failings which took the decision to dismiss outside the range of reasonable responses.  

Consequently, the unfair dismissal claim was successful. 

Mr Kerita also won the wrongful dismissal claim; his conduct was not a fundamental breach of the contract, so BMW were not entitled to summarily dismiss him without notice.

Failure to make reasonable adjustments

The tribunal concluded that Mr Kerita was disabled under the Equality Act 2010 as he had a physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. Although Mr Kerita identified at least four less strenuous roles, BMW told the tribunal there were no vacancies. However, there was no evidence presented to support this, and the failure to make reasonable adjustments claim was therefore successful. 

Direct disability discrimination

Mr Kerita claimed he was dismissed because of his disability. The tribunal found that the managers didn't trust associates with back conditions and were quick to conclude they were not being honest. As BMW failed to prove that the dismissal was unrelated to his disability, the claim succeeded. 

Discrimination arising from disability

This claim is made out when an employee with a disability is treated unfavourably because of something arising in consequence of that disability, and where the treatment is not justified as a proportionate means of achieving a legitimate aim. The tribunal found the warning was unfavourable treatment; he was under a review period for 12 months and it increased the risk of dismissal under the sickness absence procedure. The warning was issued because of the absence which was a consequence of Mr Kerita's disability. BMW tried to justify it, but the tribunal found that they should have made reasonable adjustments to his role which might have prevented the absence and therefore the warning. Consequently, this claim succeeded. 

Key takeaways for employers

If you see an employee who is on sick leave out and about, don't jump to conclusions; it doesn't necessarily mean they can't leave their house. Their doctor may even have advised them to go out to aid their recovery. 

If you think something isn't quite right, talk to your employee and obtain input from a medical professional. The tribunal in this case described covert surveillance as “a highly unusual step”. It isn't used very often because employers can rarely justify it. There are numerous factors to take into account from a data protection standpoint and because employees have a right to privacy under Article 8 of the European Convention on Human Rights (ECHR). Due to the complexities involved, it's always best to seek legal advice before taking such a step.

This case also offers valuable reminders when conducting a disciplinary process. Don't skip the investigation, it's an integral part and if you get it wrong it can impact the rest of the process. Consider all the evidence, not just what you want to hear, and make sure you review and adhere to your disciplinary policies and any collective agreements.

You can read more about this topic in the articles ‘Is your employee sick or skiving?' and ‘Dishonest and fraud: teacher who phoned in sick to work at a different school banned from teaching.’

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