The importance of medical evidence, when determining whether symptoms suffered by an employee are overstated.
Tuesday 10 May, 2011
In Pacey v Caterpillar Logistics Services (UK) Ltd, an ET has found that Mr Pacey was dismissed unfairly, even though the employer had surveillance film evidence which showed him carrying out various strenuous activities while absent on sick leave.
Mr Pacey worked for Caterpillar for over 11 years. He went off sick with a work related back injury and the company and their insurers did not believe that Mr Pacey was really unwell. Therefore, the insurance company decided that Mr Pacey would be followed for 7 days and his activities filmed. During this time, Mr Pacey was filmed clearing ice from his car, driving his car, carrying shopping and walking his dog, despite his bad back. On his return to work, Mr Pacey was suspended and then dismissed for gross misconduct on the basis that he was falsely claiming company sick pay. Mr Pacey explained that he was acting on the advice of his GP and that 5 or 6 doctors had declared him unfit for work. The company sought advice from Mr Pacey’s GP and he confirmed that Mr Pacey was incapacitated at the time. However, despite this view, Caterpillar went ahead and dismissed Mr Pacey, finding that his claims that he was too unwell to work were exaggerated and he was therefore falsely claiming sick pay.
The ET concluded that Mr Pacey had been dismissed unfairly - the company had failed to undertake a proper and adequate investigation. Amongst other failures, the company relied on the surveillance film, which had been obtained by the insurance company for other purposes and was restricted to a period of just 7 days. Furthermore, the company did not obtain any of their own medical advice, rather they relied on their own interpretation of the surveillance film. This was inadequate and the ET found it to be “completely incomprehensible”. Mr Pacey was awarded nearly £50,000 in compensation - a costly error.