There's many an employer that has wondered if an employee is skiving, and for some employers it must be really tempting to start covert surveillance of an employee. However a recent case - Pacey v Caterpillar Logistics Services (UK) Ltd - illustrates that doing so isn't always straightforward.
Mr Pacey worked for Caterpillar Logistics Services UK (Caterpillar) and he suffered a back injury whilst at work in November 2009. Caterpillar's insurers didn't believe the extent of Pacey's injuries and set him up to be covertly filmed. He was subsequently filmed clearing ice from his car, driving the car, carrying shopping and walking his dog. When he returned to work in January 2010, he was accused of gross misconduct for falsely claiming sick pay.
Pacey's response was that his GP had advised him to take light exercise. A GPs letter confirmed this. Caterpillar then wrote to the GP, noting what Pacey was doing in the film (but not showing the GP the film), and asked whether it was consistent with Pacey's injuries. This again was mostly confirmed by the GP. Caterpillar then dismissed Pacey, suggesting that he was lying.
The Employment Tribunal found the dismissal unfair. It was "incomprehensible" that Caterpillar had not obtained medical evidence from its own occupational health doctor (who had said that Pacey was unable to work), or indeed any doctor at all. A lay person watching the video was not qualified to assess Pacey's injury.
It seems that Caterpillar had "cherry picked" the GP's answers, taking no account of comments that Pacey seemed genuinely in pain and he had never had reason to query his absences in the past. The employer's mistake cost it £49,715. An expensive lesson indeed.
This was first published in July 2011