Case Study Submitting a Claim / Response to Tribunal

Case study – submitting a claim / response to Tribunal

Read the case study below and consider the process for submitting a claim – discuss in groups if you feel this employee has a case?

Background Mr Mainwaring has been employed by your company, a steel manufacturer, for more than 30 years. He is a crane driver. Since 2003 he has suffered from back problems. In 2003 he had 2 periods of sickness absence totalling 137 days. Between February and August 2006 he had 100 days off.

In late January 2007 he had more trouble with his back and was in receipt of sick pay. His GP gave him a prescription for medication and physiotherapy and advised him to keep active and perform normal activities as pain permitted and avoid heavy lifting and sitting in one place for long periods.

The company’s occupational health advisor was a local GP Dr Bevan. He saw M several times including 9th and 16th March 2007. On 16th March Dr Bevan said M had improved – he was not yet fit to work but would be able to return on light duties in 2 weeks.

Meanwhile, in early March the company received an anonymous tip-off that M was not behaving as if genuinely sick with back problems. The company did not get a witness statement but decided to undertake surveillance of M.

M was video taped on 9th, 15th and 16th March. The video footage totalled less than 5 minutes and showed:

(1) 9th March: M loading shopping into the boot of his car at Tesco (2) 15th March: M walking down street from betting office (3) 16th March: M unloading shopping at home

The manufacturing manager who authorised the surveillance, Mr Rainsbury, viewed the tapes and asked for Dr Bevan’s opinion. After watching the evidence Dr Bevan claimed:

(1) 9th March: “Mr Mainwaring is shown to be placing various bags into a car. If he were suffering from back pain, he would not be capable of undertaking these tasks as they would have caused him considerable discomfort and pain.”

(2) 15th March: “Mr Mainwaring is shown walking freely down the street; he showed no obvious signs of back pain, which I would expect in his condition. Following the consultation on the 16th March, his condition was improving however; he should not be moving as freely as he is shown in the video.”

(3) 16th March: Mr Mainwaring is shown shopping at a local supermarket and then later removing various bags from the boot of his car. He is showing no signs of pain. He should not be carrying these bags even though his condition had improved. On the video, he is shown undertaking a 3- point turn in his car. He would have been capable of this task if he had power assisted steering in the car.

In my opinion if Mr Mainwaring had informed me on both dates when he saw me at the Works Medical Centre that he was capable of undertaking these tasks I would have recommended that he be fit for work with no restrictions placed on him with immediate effect.”

NB: The car does have power steering.

Investigatory meeting M had an investigatory meeting and he and his shop steward were shown the video footage and had Dr Bevan’s report read to them. M’s response was that he was “improving” and his back problem did not prevent him acting as shown.

At the end of the meeting he was suspended pending the outcome of the investigation.

M’s own GP wrote to the company on 28th March stating: “The above named has been consulting his GP and the practice physiotherapist since January with low back pain. He has had a course of physiotherapy and been taking ant-inflammatory medication. He has been advised to keep mobile and do light exercise to strengthen his back. He is currently fit for light duties. I trust this information is helpful to you.”

Dr Bevan, meanwhile, was asked for a fuller statement. His report dated 30th March 2007 concluded: “On both consultations of the 9th and 16th March he demonstrated poor movement and was in pain. He led me to believe that he was unfit to return to the workplace due to these poor movements and I based my assessment on this information. However, on seeing the video, his movement is not restricted; therefore, there was no reason why he could not have returned to his workplace during this period.

I did advise Mainwaring of on the type of medication he should be taking. He then spoke to his GP who prescribed this medication accordingly. I have no evidence to prove whether he was taking this medication or not. However, if he was taking this mediation, he would still not have been able to undertake the tasks shown in the video with the back issues he presented to me on the 9th and 16th March”.

Disciplinary hearing M was invited to a disciplinary hearing on 7th April conducted by the manufacturing manager Mr Rainsbury. He had a TU rep. His defence is essentially that: •The bags were not heavy •He was continuing to exercise •The video shows nothing more than light exercise

After a 45-minute adjournment to consider his decision, Mr Rainsbury dismisses M. for dishonestly reporting sick when fit to work.

Appeal M’s appeal is heard by Mr Gallagher, the Operations Manager. The hearing starts on 19th April but is adjourned because Mr Gallacher wanted to speak to Dr Bevan. He also wished to show Dr Bevan another letter from M’s GP dated 13th April.

When the appeal resumed on 11th May Mr Gallacher said that Dr Bevan had reviewed the other GP’s letter but was resolute in his opinion that he would not have signed M off as unfit had he seen the video evidence.

The dismissal is upheld. M submits a claim to the conciliation, a conciliator through ACAS is appointed but settlement could not be reached. A Certificate has now been issued.