When an employee develops a chronic condition that affects their ability to work and they require a period of sick leave, their employer has certain duties of care to follow, and must be extremely careful when approaching misconduct issues. A recent Employment Tribunal case has provided a clear example of what not to do.
Alan Jones and Pilkington – the facts of the case
Glass and glazing manufacturer Pilkington UK Ltd admitted having “fallen short” in its handling of Alan Jones, a former team leader who was dismissed from his employment in 2019. Mr Jones had been diagnosed with fibrosis radiation syndrome, a long-term condition that was degenerative and could only be managed with no prospect of a permanent recovery. He was moved to light duties and then began a period of long-term sick leave as a result.
While Mr Jones was on sick leave, his employer received a ‘tip’ from a former colleague that he may have been working in another capacity. With little regard for his privacy, the company’s management instructed a surveillance company to track Mr Jones. They then invited him to a meeting to discuss the “reasonable belief” they had formed that he had “undertaken secondary employment during sickness absence, whilst in receipt of Occupational and Statutory sick pay.” At no point did the company seek medical evidence.
Though the meeting had taken the form of both a sickness review and a disciplinary investigation, which is generally not appropriate given they are separate processes, this was not explained to Mr Jones. An official disciplinary hearing followed – but while the purpose of this meeting was recorded as determining whether Mr Jones had undertaken separate employment while on sick leave, the questions shifted towards whether he was carrying out physical activity contrary to medical evidence. At the conclusion, the company decided that their employee’s personal conduct contravened their policies and rendered “any future working relationship and trust questionable.”
Once the process was concluded, Mr Jones was informed he had been dismissed. With the support of his union, he brought legal proceedings. Having taken into account the various procedural failures leading up to and resulting in his dismissal, the Employment Tribunal concluded that the claimant’s complaints of unfair dismissal, discrimination on grounds of disability and breach of contract were well founded. This decision was upheld at appeal, and Pilkington eventually agreed to pay Mr Jones £329,000 in damages and lost earnings.
What can employers learn from this case?
This case is a clear example of why employers must carry out proper procedures when investigating any possibility of misconduct: the purpose of these procedures is to ensure an employer has the full story, not to prove that the employee is ‘guilty’ at first instance.
In my own work, I often deal with employer clients who fail to carry out procedures correctly not out of ill-intent, but out of a genuine unawareness. I cannot stress enough how important it is for employers to seek proper advice. While we never normally see such significant amounts of compensation as the claimant received in this case, they are always a possibility. In addition, legal fees can amount to a significant sum. Seeking advice early prevents these costs from racking up to an uncontrollable extent. Minor mistakes can add up and be extremely costly for your business.
I would generally be reluctant to advise an employer to dismiss without careful consideration when disability comes into play. Medical evidence is essential – you cannot make assumptions about an employee’s disability. If there are inconsistencies, you should speak to the employee as well as their medical advisors to understand why.
Any investigation into misconduct where the employee has a disability (or otherwise) should also establish the employee’s own perspective even at the early stages. It would be difficult to imagine a circumstance in which paying a surveillance company would be appropriate…
