When employers are given a tip-off that an employee is ‘malingering’ they do not necessarily have to take a statement from the informant for the dismissal to be fair.
In Corus UK v Mainwaring the claimant had long periods off work allegedly due to back pain. An informant suggested to the employer that he was malingering. The employer then commissioned a video which showed the employee carrying heavy shopping and driving his car. The video was shown to the GP who had signed him off sick who said that if he had known he could carry such loads and drive his car he would not have signed him off work with back pain. The employer held an investigatory meeting with the employee at which he was shown the video. He was suspended from work. There was then a disciplinary meeting at which he was dismissed for misconduct on the ground that he had dishonestly reported himself as unable to work through illness when he was in fact fit to work. There was an internal appeal at which he was unsuccessful in his appeal against dismissal.
The tribunal found that his dismissal was unfair but the EAT has now said that they were wrong to do so and has remitted the case for rehearing.
Key issues were:
- The Tribunal were wrong to criticise the employer for not taking a statement from their original informant. He triggered the investigation but did not form any part of it.
- The Tribunal thought the employee should not have been suspended but had failed to appreciate that the suspension took place after the initial investigatory meeting. The employers were within their rights to suspend at that point.
- The employers were not wrong to fail to bring in a consultant (GPs are perfectly capable of assessing back pain) and not wrong to go back to the GP without the employee's consent.
- The Tribunal considered that the actions of the individual manager who had authorised the making of the video, and then been instrumental in the decision to suspend and then dismiss the employee suggested that he had a ‘clear mindset’ from the start, that dismissal was the only possible outcome and that had infected the whole of the disciplinary process. It had failed to consider the effect of the internal appeal. The disciplinary process had to be considered as a whole in assessing the fairness of the dismissal.
Point to note:
- Although informants in such cases may be motivated by ‘sour grapes’ or some other ill-feeling against the employee, that will be immaterial unless the information provided by the informant plays a part in the decision to dismiss. In this case, the employer relied on the video evidence in deciding to dismiss, not the information that had led to them obtaining that evidence.
- The appeal step in any dismissal procedure is essential in order for the employer to comply with the statutory procedures. It may also render a potentially unfair dismissal fair. Even if the manager handling the initial disciplinary hearing has a ‘clear mindset’ to dismiss, a tribunal must consider whether this, in fact, tainted any appeal process and, if not, whether overall the process was fair. Properly conducted internal appeals may save employers from unfair dismissal liability.