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Disabled employee who was on long term sick leave 'spied on' by employer and succeeded with discrimination claims

View profile for Rebecca Topping
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Disabled employee who was on long term sick leave spied on by employer and succeeded with discrimination claims

It has recently been reported in the media that an employment tribunal case has determined that a longstanding employee, of 36 years’ service, was successful in bringing a claim for unfair dismissal and disability discrimination against his employer.

It is reported that in this particular case, the employee started working for the company as an apprentice, where he worked his way up to be a shop steward and a trade union representative for the company. The employee had previously undergone radiotherapy treatment for a form of cancer and developed an incurable muscle wasting condition, fibrosis radiation syndrome, as a result of such treatment, which caused him pain and discomfort. This led to him unfortunately having a lot of time off work during which, he was also diagnosed with depression and anxiety.

It is understood that the employer instructed a surveillance company to effectively ‘spy’ on the employee, whilst he was on sick leave to ascertain whether such sick leave was genuine. The surveillance company obtained footage of the employee visiting a friend at his believed place of residence, something which was encouraged by his treating mental health services to improve his mood, being a symptom of his depression and anxiety.

It was determined that the employer wrongly concluded that the employee’s sick leave was disingenuous and that he was working whilst on sick leave which led to his dismissal.

Thereafter, the company investigated the matter further and during the disciplinary process, they concluded that although the employee hadn’t undertaken paid work, they had undertaken ‘physical activity’ whilst off sick, and so the dismissal stood.

The employee subsequently made a successful complaint of unfair dismissal, breach of contract and discrimination arising out if disability, pursuant to section 15 of the Equality Act 2010, to the employment tribunal.  

If you have a disability and you have made your employer aware of your condition, they are under a duty to not discriminate against you under the Equality Act 2010.

You will have potentially been discriminated against if you have suffered unfavourable treatment and have been put to a detriment, as a result of a protected characteristic, such as a disability. There are a number of protected characteristics, as defined by the Equality Act 2010 and these include:

  • Age
  • Gender
  • Race
  • Sexual orientation
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Gender reassignment
  • Religious beliefs
  • Disability

Section 6 of the Equality Act defines the ‘legal test’ for a condition being classified as a disability for the purpose of the act. It states that a condition must be a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on an individual’s ability to complete normal day to day activities.

In order to be successful with a discrimination claim under section 15 of the Equality Act 2010, you will have to be able to provide sufficient evidence that you have been discriminated against for a reason arising out of your disability.

It is reported that the employment tribunal who heard this particular case upheld all of the claimant’s claims and found in his favour. The tribunal concluded that the dismissal amounted to unfavourable treatment, and that the claimant’s sickness absences/incapacity to attend work, clearly arose as a result of his disability. The tribunal concluded that the company failed to seek the view of an appropriate medical expert and made assumptions about perceived inconsistences between what they were told was the employee’s physical condition and the limited activities which were revealed in the CCTV footage.

It is understood that the case will now progress to a remedies hearing where the tribunal will determine what the claimant will be awarded, for succeeding with his claims.

This particular type of case is something which we, as a discrimination law specialists, have a wealth of experience in dealing with.

If you feel that you have been discriminated against as a result of a protected characteristic, you may be able to bring a claim for discrimination under the terms of the Equality Act 2010. We may be able to help you with this and so please contact our specialist discrimination team for further advice on 0161 696 6170.