Pacey v Caterpillar Logistics Services (UK) Ltd ET3501719/10

Caterpillar were criticised by the tribunal in this case for failing to obtain a medical report in relation to surveillance film it had taken showing its employee carrying out various activities while he was absent on sick leave.

Mr Pacey was dismissed on grounds of gross misconduct for allegedly falsely claiming sick pay.  The decision to dismiss Mr Pacey was made after his manager’s review of the film but without any input from Caterpillar’s occupational health doctor.  The tribunal acknowledged that Mr Pacey seemed to be able to do many things in the film but held that only appropriately qualified individuals would be able to assess whether he had a sufficient injury to keep him off work.   

It was Caterpillar’s insurers who arranged for the investigator to follow and film him during his absence.  Mr Pacey alleged that his doctor had advised him to take light exercise and that the activities which had been filmed were not inconsistent with this advice.  According to the tribunal Caterpillar’s investigation was wholly inadequate and no reasonable employer would have come to the decision to dismiss as Caterpillar did on the basis of its investigations.  Once video footage had been obtained medical evidence should have been sought. Mr Pacey was therefore awarded £49,715 which included £33,055 in respect of pension loss.  This award reflected his loss of membership of a defined benefit pension scheme.   

Key point:  A layman’s decision about covert filming may lead to an expensive finding of unfair dismissal.  Context is all.