Where surveillance film is relied upon as evidence of the fairness of an employee's dismissal, footage should be examined by an expert and any investigation should be fairly and thoroughly undertaken.

Key facts

The Claimant was employed by Caterpillar Logistics Services UK as a Warehouse Operative. After suffering an injury in the course of his employment, the Respondent's occupational health doctor accepted that the Claimant was not fit for work as a result. After being advised by occupational health to go to his own GP, the Claimant's sick note was extended. The Respondent's insurers - being suspicious about the accident – arranged for an investigator to follow the Claimant for several days. The resulting footage showed him driving, carrying a small shopping bag, walking his dog and clearing ice from his car. On his return to work, the Claimant attended a meeting to discuss the incident and was suspended on an allegation of gross misconduct for falsely claiming company sick pay. An investigation hearing was held, followed by a disciplinary meeting at which the opinion of the Claimant's GP was heard, having been formed on the basis of a narrative of the footage. The Claimant was dismissed.

The decision

The Claimant alleged that the dismissal was unfair on the basis that the reason for dismissal was not the true and genuine reason and that the investigation had been one-sided and inadequate. The tribunal upheld the claim for unfair dismissal on several grounds. Firstly, it had been the insurance company which had started the procedure, not the Respondent. Secondly, the charge was established before the Claimant was spoken to about his account of the incident. The letter alleging gross misconduct was pre-prepared and handed to the Claimant on his return to work. Thirdly, it was 'completely incomprehensible' that no medical professional had seen the DVD. The decision had been made solely on lay consideration of the evidence. Finally, the advice of the GP who commented on a narrative of the DVD had been 'cherry-picked' by the Respondent and excluded content whereby the doctor praised the Claimant's work absence record and stated that he was genuinely ill.

What this means for employers

The case did not address whether surveillance footage can be used as evidence for a fair dismissal, but rather concentrated on how it could be used legitimately. The employer should ensure that its occupational health doctor, or at least another medical professional, examines the footage in order to provide a valid medical opinion of its contents before any decision is reached. Any investigation should be conducted fairly without any prior conclusions being drawn.

Pacey v Caterpillar Logistics Services (UK) Ltd ET 3501719/10