Employment Law – Unfair Dismissal – Absence From Work

The case of Mainwaring v Corus UK Ltd [2007], concerned issues relating to the alleged unfair dismissal of an employee due to long periods of absence caused by the employees back problems. The employee had been employed as a crane driver for over 30 years. In 2002, he began to suffer from back problems which caused him to be absent from work for extended periods of time.

At one point in late January 2006 he again took time off work due to his back condition. He consulted his GP and was prescribed medication as well as a course of physiotherapy. He was advised to keep active, to perform normal activities as pain permitted, and to avoid heavy lifting or sitting in one place for long periods of time.

Throughout the duration of his absence, the employee was seen regularly by B, an occupational therapist engaged by the employer. By the 16th of March the employee’s condition had improved to the extent that B concluded that he would be able to return to light duties within about two weeks, although at that point he was not fit for a full return to work.

However, in early March the employer had received an anonymous ‘tip-off’ from a colleague of the employee who suggested that the employee might have been behaving outside of work in a manner inconsistent with him legitimately being absent from work due to back problems.

The employer did not take a witness statement from the informant, but it decided to undertake surveillance of the employee. Consequently, between the 9th and the 16th of March, the employee was recorded on video on three occasions. On two of those occasions he was seen loading and unloading shopping from the boot of his car.

Upon viewing the video footage, B concluded that had the employee informed him that he was capable of performing those tasks, he would have recommended that he was fit to return to work with no restrictions being placed upon him.

Subsequently, on the 27th of March, an investigatory meeting was held, following which the employee was suspended pending the outcome of a disciplinary investigation. The employee was invited to a disciplinary hearing which was conducted on the 7th of April by R, the employer’s manufacturing manager.

At the conclusion of that hearing, R dismissed the employee on the ground that he had dishonestly reported himself as unable to work through illness when he had in fact been fit to work. A subsequent internal appeal against that dismissal by the employee was unsuccessful. The employee therefore presented a claim before the employment tribunal alleging that he had been unfairly dismissed. His claim was upheld by the tribunal on the basis that:

§ The employer had failed to act within the range of reasonable responses in failing to take a statement from the informant; and

§ The employer, having received a ‘tip-off’, had proceeded to suspend the employee and had thereby demonstrated a pre-judged mindset to dismiss.

The employer appealed to the Employment Appeal Tribunal (EAT) against this decision. The EAT ruled that:

§ The tribunal’s finding in relation to the employer’s failure to take a statement from the informant was an error of law;

§ The tribunal’s findings in relation to the employee’s suspension and the employer’s mindset to dismiss had been reached upon an incorrect factual basis; and

§ The tribunal had failed to consider the effect of the internal appeal procedure on the fairness of the dismissal proceedings.

The appeal was allowed and it was held that:

§ The communication to the employer by the informant had not formed any part of the investigation into the employee’s conduct. The communication had merely triggered the investigation. Furthermore, the reasons for dismissal relied upon by the employer made no mention of the communication from the informant, and there was no evidence capable of supporting the assertion that the employer had had that communication in mind when deciding to dismiss. In such circumstances the absence of any witness statement from the informant could not be said to have been relevant to the reasonableness of the investigation or the decision to dismiss.

§ In relation to the tribunal’s conclusions on the allegation that the employer had approached the investigation with dismissal in mind, that conclusion had been reached upon the basis that following the receipt of the ‘tip-off’ the employer had suspended the employee without further consideration. Having regard to the investigatory meeting of the 27th of March 2006, the tribunal had clearly reached that conclusion upon a misapprehension of the facts.

§ By neglecting to consider the potential effects of the internal appeal procedure, the tribunal had failed to consider the fairness and reasonableness of the proceedings as a whole. Accordingly, the employee’s unfair dismissal claim would be remitted for fresh consideration by a different tribunal.

© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.