In this rather unusual case, an employee had sustained a back injury at work and, having been declared unfit to work by both the employer’s occupational health manager (OHM) and his own GP, the claimant was off sick for over a month.

The key facts are as follows:

  • The employer’s insurers were sceptical about the extent of the claimant’s injury so they arranged for an investigator surreptitiously to follow and film the claimant. The film showed the claimant carrying out a number of physical activities including walking his dog and scraping ice from his car.
  • The employer consequently dismissed the claimant for gross misconduct on the basis that he was claiming sick pay whilst able to work.
  • In his defence, the claimant explained that his GP had advised that he should stay as active as possible and do light exercise, which his GP confirmed in a letter to the employer.

An employment tribunal found that the employer’s investigation was wholly inadequate. Crucially, the employer had not based its decision on the opinion of its own OHM – it did not ask its OHM to review the surveillance film. The tribunal held that only an expert would have been able to comment on the severity of the claimant’s injury. The claimant’s claim of unfair dismissal was upheld.

Pacey v Caterpillar Logistics Services (UK) Ltd