In Pacey v Caterpillar Logistics Services (UK) Ltd an employment tribunal has upheld a claim for unfair dismissal, criticising the employer for failing to obtain a medical report in relation to surveillance film showing an employee carrying out various activities while absent on sick leave.

Mr Pacey was off sick for 5 weeks. During that absence, Mr Pacey saw both Caterpillar’s occupational health doctor and his own GP, both of whom assessed him as being unfit for work. The employer and its insurers were sceptical about Mr Pacey’s injury so the insurers arranged for an investigator to follow and film Mr Pacey. The film showed Mr Pacey doing various activities such as clearing ice from his car, driving his car, carrying shopping and walking his dog.

On his return to work, Mr Pacey was shown the surveillance film. He said that his GP, Professor Khunti, had advised him to take light exercise and to do as much as possible. His activities in the film were not inconsistent with this advice, which the Professor confirmed. The employer decided that Mr Pacey’s claim of being too ill to work was exaggerated and false and dismissed him for gross misconduct.

A tribunal upheld Mr Pacey’s unfair dismissal claim for three principal reasons: (i) It was the insurance company who initiated the investigation and surveillance in the context of a possible accident claim. (ii) The employer had ignored Professor Khunti’s comments that Mr Pacey was genuinely ill and had given an opinion based on the employer’s account of what was in the film, but had not been given the opportunity to see the film himself. (iii) The employer did not ask its occupational health doctor to review the film, therefore, the decision to dismiss Mr Pacey was based on inexpert (or, a lay person’s) consideration alone.

The lesson? Where there is doubt about illness, always obtain a medical expert’s opinion on actual evidence before deciding how to use it.