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Law: Unfair Dismissal – Investigating Malingering

In a recent case Corus UK Ltd v Mainwaring the requirements of an investigation where an employee pretends to be unfit when in fact fit, were considered.

Mr Mainwaring (M) was employed as a van driver.

In 2002 he began to suffer back problems and was absent for two periods in that year for a total of 137 days.

In 2005 he had 100 days off work over a six month period. In January 2006 he went absent from work again and received medication and physiotherapy via his GP.

On 16 March the company’s occupational health advisor, Dr Bevan, concluded his condition had improved to the extent that he would be able to return to light duties in a fortnight.

In early March, the employer had an anonymous tip off that M had been doing activities inconsistent with his alleged sickness.

The company didn’t take a statement from the person but in fact carried out surveillance by video on 9, 15 and 16 March 2007.

On 9 March M was seen loading shopping into the back of his car, on 15 March walking to a betting office and on 16 March unloading shopping from the back of his car.

Dr Bevan was asked to provide a further statement. He concluded that the incidents with the shopping would have caused considerable discomfort and pain if he was suffering back pain as he had described.

An investigatory meeting was held with M, who confirmed he was improving and was not prevented from carrying out the activities in the video footage.

A further statement was acquired from Dr Bevan who cofirmed that on seeing the video there was no reason why M could not return to work.

A disciplinary meeting was held and M was subsequently dismissed on the grounds that he had dishonestly reported himself as unable to work through illness when he was fit to work. M appealed but the decision was upheld.

In the Tribunal hearing it was held to be unfair dismissal as the company had not taken a statement from the informer and had not used a consultant to give medial evidence. However, on Appeal this decision was overturned on the basis that the company had no such obligations and could rely on the evidence they gained.

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