| The case of Mainwaring v Corus UK Ltd [2007], | | | | tribunal on the basis that: |
| concerned issues relating to the alleged unfair | | | | § The employer had failed to act within the |
| dismissal of an employee due to long periods of | | | | range of reasonable responses in failing to take a |
| absence caused by the employees back problems. | | | | statement from the informant; and |
| The employee had been employed as a crane | | | | § The employer, having received a 'tip-off', |
| driver for over 30 years. In 2002, he began to | | | | had proceeded to suspend the employee and had |
| suffer from back problems which caused him to | | | | thereby demonstrated a pre-judged mindset to |
| be absent from work for extended periods of | | | | dismiss. |
| time. | | | | The employer appealed to the Employment |
| At one point in late January 2006 he again took | | | | Appeal Tribunal (EAT) against this decision. The |
| time off work due to his back condition. He | | | | EAT ruled that: |
| consulted his GP and was prescribed medication | | | | § The tribunal's finding in relation to the |
| as well as a course of physiotherapy. He was | | | | employer's failure to take a statement from the |
| advised to keep active, to perform normal | | | | informant was an error of law; |
| activities as pain permitted, and to avoid heavy | | | | § The tribunal's findings in relation to the |
| lifting or sitting in one place for long periods of | | | | employee's suspension and the employer's |
| time. | | | | mindset to dismiss had been reached upon an |
| Throughout the duration of his absence, the | | | | incorrect factual basis; and |
| employee was seen regularly by B, an | | | | § The tribunal had failed to consider the |
| occupational therapist engaged by the employer. | | | | effect of the internal appeal procedure on the |
| By the 16th of March the employee's condition | | | | fairness of the dismissal proceedings. |
| had improved to the extent that B concluded that | | | | The appeal was allowed and it was held that: |
| he would be able to return to light duties within | | | | § The communication to the employer by |
| about two weeks, although at that point he was | | | | the informant had not formed any part of the |
| not fit for a full return to work. | | | | investigation into the employee's conduct. The |
| However, in early March the employer had | | | | communication had merely triggered the |
| received an anonymous 'tip-off' from a colleague | | | | investigation. Furthermore, the reasons for |
| of the employee who suggested that the | | | | dismissal relied upon by the employer made no |
| employee might have been behaving outside of | | | | mention of the communication from the |
| work in a manner inconsistent with him | | | | informant, and there was no evidence capable of |
| legitimately being absent from work due to back | | | | supporting the assertion that the employer had |
| problems. | | | | had that communication in mind when deciding to |
| The employer did not take a witness statement | | | | dismiss. In such circumstances the absence of any |
| from the informant, but it decided to undertake | | | | witness statement from the informant could not |
| surveillance of the employee. Consequently, | | | | be said to have been relevant to the |
| between the 9th and the 16th of March, the | | | | reasonableness of the investigation or the decision |
| employee was recorded on video on three | | | | to dismiss. |
| occasions. On two of those occasions he was | | | | § In relation to the tribunal's conclusions on |
| seen loading and unloading shopping from the boot | | | | the allegation that the employer had approached |
| of his car. | | | | the investigation with dismissal in mind, that |
| Upon viewing the video footage, B concluded that | | | | conclusion had been reached upon the basis that |
| had the employee informed him that he was | | | | following the receipt of the 'tip-off' the employer |
| capable of performing those tasks, he would have | | | | had suspended the employee without further |
| recommended that he was fit to return to work | | | | consideration. Having regard to the investigatory |
| with no restrictions being placed upon him. | | | | meeting of the 27th of March 2006, the tribunal |
| Subsequently, on the 27th of March, an | | | | had clearly reached that conclusion upon a |
| investigatory meeting was held, following which | | | | misapprehension of the facts. |
| the employee was suspended pending the | | | | § By neglecting to consider the potential |
| outcome of a disciplinary investigation. The | | | | effects of the internal appeal procedure, the |
| employee was invited to a disciplinary hearing | | | | tribunal had failed to consider the fairness and |
| which was conducted on the 7th of April by R, | | | | reasonableness of the proceedings as a whole. |
| the employer's manufacturing manager. | | | | Accordingly, the employee's unfair dismissal claim |
| At the conclusion of that hearing, R dismissed the | | | | would be remitted for fresh consideration by a |
| employee on the ground that he had dishonestly | | | | different tribunal. |
| reported himself as unable to work through illness | | | | © RT COOPERS, 2007. This Briefing Note |
| when he had in fact been fit to work. A | | | | does not provide a comprehensive or complete |
| subsequent internal appeal against that dismissal | | | | statement of the law relating to the issues |
| by the employee was unsuccessful. The | | | | discussed nor does it constitute legal advice. It is |
| employee therefore presented a claim before the | | | | intended only to highlight general issues. Specialist |
| employment tribunal alleging that he had been | | | | legal advice should always be sought in relation to |
| unfairly dismissed. His claim was upheld by the | | | | particular circumstances. |