Disabled worker who was being spied on during sick leave, awarded £392k

A disabled glass maker has been awarded £392k compensation at the employment tribunal after being unfairly dismissed and spied on by his employer during sick leave.

The tribunal heard that the employee, AB went on sick leave after he had developed neuropathy, which is a chronic condition linked to side effects of earlier cancer treatment.

AB’s employer had become concerned that whilst he was on sick leave, he was completing work for another company, so they instructed a surveillance firm to monitor him. The surveillance firm provided the company with footage of AB on a farm accompanying his friend with a delivery.  The employer took this as evidence that he was working elsewhere and felt that the physical activity was not in line with his medical condition.

AB had undergone high-dose radiotherapy in the 1980’s after developing Hodgkins Lymphoma, which in turn caused neuropathy, a chronic condition that reduced his muscle mass in his shoulder. His job role was altered to involve less manual labour as a result and he began a period of sick leave in 2018 because of his shoulder pain. His physical condition also contributed to mental health problems, which an NHS therapeutic service diagnosed as anxiety and depression.

A colleague saw AB wearing ‘work boots’ at a local cycle shop, which led the company to believe he was involved in other employment. Consequently, they hired the surveillance firm to monitor him. The firm recorded footage of AB on his friend’s farm carrying a sack of potatoes and passing a hose. The tribunal determined that the farm visits would have “had positive mental health outcomes” for AB and being around his friend may have aided his wellbeing.

Subsequent to this, AB was invited to a disciplinary hearing, where the company claimed that they had a “reasonable belief” that he was taking on secondary employment whilst on sick leave.  He was dismissed for gross misconduct, which he appealed, however the original decision was upheld.

The tribunal found that an appropriate medical expert should have been utilised before proceeding with any decisions, instead of relying on the assumed inconsistencies between the footage and what AB had informed them about his medical condition.

They also found that the allegations made against AB were changed during the process, including both the claims that he had taken on secondary employment and that he had taken on physical activity that did not align with his need for sick leave, without him or his representatives being informed or an adjournment to allow them to respond properly.

The tribunal determined that the company did not obtain proper medical evidence for whether his condition could allow the activity to be carried out safely before dismissing him and as such, AB’s claims of unfair dismissal, disability discrimination and breach of contract succeeded, with the court finding that the employer relied too heavily on surveillance footage over real medical evidence. The company appealed this decision, but this was dismissed by the Employment Appeal Tribunal.

At a part one remedy hearing, AB was awarded £31,527 in injury to feelings and notice pay.  A second award, including loss of earnings and pension, will mean his total compensation will amount to over £392k.

The court stated, “As is often the case with video surveillance, there was a failure to question what could be seen in the video and to ensure that what they suspected might be happening was actually the case.”  It was determined that the employer had relied too heavily on what they perceived from AB’s behaviour on the video footage and they did not consider alternative explanations. The tribunal found that his dismissal did not fall within the range of reasonable responses and his conduct issues relating to AB’s farm visits, were not classified as gross misconduct.

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