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Employers often ask for advice on whether an employee’s activities when signed off sick can be used to show that their absence is not genuine and they are malingering.
27 September 2023
Case Study
The recent Employment Appeal Tribunal case of Pilkington UK Ltd -v- Jones, highlights the risk in making an assumption that an employee is malingering, as well as the importance of a thorough investigation.
The Employment Appeal Tribunal found that a mistaken belief in an employee’s ability to work can amount to “something arising” from a disability for the purpose of a claim under section 15 of the Equality Act 2010 for discrimination arising from disability.
The claim was bought by Mr Jones, who was a team leader with over 35 years’ service. The Claimant developed a debilitating shoulder condition called radiation induced neuropathy in 2018 which was a side-effect of radiotherapy treatment he received for cancer many years earlier. He was initially put on light duties, but was subsequently signed off work on grounds of severe depression and anxiety which were linked to his shoulder problem. The employer made a referral to its occupational health provider who concluded that the employee’s shoulder condition permanently prevented him from undertaking manual work, but he may be able to return to a non-manual role in the future once his pain was under control.
Whilst Mr Jones was on long term sick leave, his employer was told by a colleague that Mr Jones had been spotted wearing work boots. The company became concerned that Mr Jones was working elsewhere whilst claiming sick pay and subsequently engaged a surveillance company to monitor his activities. Footage was obtained showing Mr Jones accompanying a friend in a van delivering products, although not physically making any deliveries himself. He was also recorded apparently working on a local farm and engaging in physical activity including loading a bag of potatoes on a truck. This led the employer to conclude that there was a chance that Mr Jones was working elsewhere whilst on sick leave, and he was dismissed on grounds of gross misconduct.
Case Study
Mr Jones lodged a claim under section 15 of the Equality Act 2010 of unfavourable treatment “because of something arising in consequence of disability” amongst other claims. Mr Jones argued that the “something arising” was his employer’s mistaken belief that he was engaging in physical activity and working elsewhere whilst on sick leave. The employer argued that it was not possible for there to be an objective finding that a belief was “something arising” from disability because a belief is something which is subjectively held, and “something arising” requires an objective finding.
The Employment Appeal Tribunal agreed with Mr Jones and found that although a belief is subjectively held, it can be objectively recognised.
Employers should exercise caution when dismissing employees on long-term sick leave, especially in circumstances where the evidence relied on, or the employee’s health condition and their limitations are unclear or subject to interpretation.
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