UK: HR Directors Club Briefing, November 2007 - Silent Witness

Where an employer is tipped off by an informant about a possible malingerer and does not subsequently rely on that information (relying, for example, on medical/ video evidence instead) there is no obligation to take a statement from the informant

Where an employer is tipped off by an informant about a possible malingerer and does not subsequently rely on that information (relying, for example, on medical/ video evidence instead) there is no obligation to take a statement from the informant. Furthermore, it is not necessary to obtain a report on the alleged malingerer from a Consultant – an occupational health physician will suffice. These were the key findings in the recent Employment Appeal Tribunal case of Corus UK Ltd v Mainwaring.

Mr Mainwaring was employed by Corus as a crane driver for over 30 years and in 2002 began to suffer from back problems which he said caused him to be absent from work. He was absent for 137 days in 2002 and a further 100 days during 2005.

In late January 2006, Mainwaring was again absent from work due to his back condition and was being paid sick pay by Corus. Mainwaring went to see his GP who prescribed medication and physiotherapy. He was also advised to keep active and perform normal duties as pain permitted and to avoid heavy lifting and sitting in one place for long periods, the latter obviously an integral part of being a crane driver.

Mainwaring also regularly saw Corus’ Occupational Health Advisor, a GP named Dr Bevan. He saw Dr Bevan twice in March 2006 and on the second occasion, Dr Bevan was of the opinion that Mainwaring’s condition had improved to such an extent that, although he was not yet fit for work, he would be able to return to light duties two weeks later.

In early March 2006 Corus received a tip-off from a colleague of Mainwaring’s suggesting that his behaviour outside work may be inconsistent with his being genuinely off work for back problems. Corus did not take a witness statement from the informant but did decide to undertake surveillance of Mainwaring. The surveillance video footage, taken on three dates in March 2006 (including two dates when Mainwaring had been to see Dr Bevan), showed Mainwaring loading shopping into the boot of his car in a supermarket car park, walking along a street having been to a betting office and unloading shopping from his car at home.

Corus subsequently sought Dr Bevan’s opinion on the video footage. Dr Bevan’s report concluded that had Mainwaring informed him on the dates that he saw him in March that he was capable of undertaking the tasks shown in the video footage, he would have recommended that Mainwaring was fully fit for work with immediate effect. Dr Bevan’s report and the video footage were then shown to Mainwaring and his union representatives. Mainwaring was suspended pending the outcome of the investigation. He was subsequently dismissed on the grounds that he had dishonestly reported himself as unable to work through illness when he was in fact fit to work.

Mainwaring’s subsequent unfair dismissal claim was upheld by the Employment Tribunal. Section 98(4) of the Employment Rights Act 1996 provides that in order for a dismissal to be fair, the employer must have acted within the range of reasonable responses in coming to its decision to dismiss the employee concerned. In its findings, the Tribunal held that it was outside the range of reasonable responses for Corus not to have taken a statement, even on an anonymous basis, from the person who provided the initial tip-off. In the Tribunal’s opinion, Corus should have done this in order to establish whether or not there was a reason why the complaint had been made. For example, were there sour grapes, was there ill feeling or some other factor influencing the informant’s evidence? The Tribunal also found that Corus had acted outside the range of reasonable responses in not obtaining the advice of a Consultant where the only medical evidence relied upon was from the GP and not a specialist back doctor.

Corus appealed to the Employment Appeal Tribunal (EAT) on a number of grounds, including the two findings mentioned above. It submitted that the failure to obtain a statement from the informant was irrelevant and also that the Tribunal had made a mistake in holding that Corus’ decision not to seek a report from a Consultant was outside the range of reasonable responses.

At the EAT hearing, Corus sought to argue that it did not ultimately rely on anything that was said by the informant in deciding to dismiss Mainwaring and that the decision to dismiss him was based solely upon the surveillance video footage and Dr Bevan’s medical opinions given in light of that footage. The EAT agreed with Corus. In its opinion, whatever the informant said was not part of any investigation; it triggered the investigation. The EAT found that the information provided was not included in the investigation and there was no evidence that Corus had relied upon it. As a result, the lack of a statement from the informant was not relevant to the reasonableness of the investigation or Corus’ conclusion and decision to dismiss.

The EAT did point out, however, that had the information in the tip-off not been merely a trigger for the findings but also a contributing factor to them, then it would have been unsupported evidence (and therefore of reduced value). It would have remained open to Corus to argue that even if that unsupported evidence was not of itself reliable, all the other evidence which Mainwaring had had a chance to challenge was so conclusive that that weakness in one area should not affect the outcome. To argue to the contrary would be to assert that whether you should get away with misconduct should depend on how the employer found out about it rather than whether you were guilty of it, a most unattractive contention (though clearly not beyond Mr Mainwaring).

In considering this issue, the EAT sought to make the distinction between a personal injuries claim of substance where forensic examination on Mainwaring would probably require consideration by a Consultant, and internal disciplinary proceedings where it could not be said that no reasonable employer could choose to dispense with a Consultant’s report where it had sought and obtained the advice of an independent occupational health physician. The relevant question was one of reasonable belief – did the GP’s input (plus the video footage) allow Corus to conclude reasonably that Mainwaring was guilty as charged? If so, there was no need to investigate further.

The EAT also found in Corus’ favour on a number of the other appeal points and the case was sent back to a different Tribunal to be re-heard on those other issues.

The EAT’s decision has a number of implications for employers faced with a tip-off from an employee wishing to remain anonymous.

If the information received anonymously is not used in a subsequent investigation, there is no need to interview the informant (if identifiable) and take a witness statement. However, if the employer wishes to rely on the tip-off information and it is potentially part of a subsequent decision to dismiss, a witness statement should be taken, on an anonymous basis to protect the identify of the informant, if need be.

If statements are provided anonymously, the 1989 EAT case of Linfood Cash and Carry Limited v Thomson sets out a number of guidelines for employers to follow, including:

• the employee under investigation should be given as much information as possible of the incident alleged and of whether the informant had any reason to fabricate the evidence;

• the employee should be given copies of the anonymous witness statements (edited if necessary); and

• the manager responsible for the disciplinary hearing should interview the informant personally and decide how much weight is to be given to that evidence, ideally making a note as to his/her reasoning.

Judging whether and how to preserve the anonymity of a witness will always be a balancing act and will depend on the particular circumstances. In the 2004 case of Ramsey and Others v Walkers Snack Foods Limited, for example, because of the close-knit community which operated in the workplace and the real risk of reprisals, the EAT held that it was acceptable for the anonymous witness statement to lack identifying detail and that, on the facts, it was reasonable for the anonymity to be extended so that neither the manager involved in the investigation nor the one carrying out the dismissal could test the veracity of the informant’s statements.

Notwithstanding the EAT’s decision in the Corus case best practice would seem to be, wherever possible, to obtain a written statement (anonymous or otherwise) from the informant, and supply this to the "accused" before the disciplinary meeting.

Whilst employers can take some comfort from the fact that the EAT found that Corus had not acted unreasonably in not obtaining medical evidence from a Consultant, the EAT’s finding should not be taken so as to give employers carte blanche to restrict their medical enquiries to occupational health physicians. There may be circumstances, even when the medical evidence relates purely to an internal investigation, where it is appropriate to seek evidence from a specialist. The decision whether or not to do so will depend on the facts. A sensible note of the employer’s reasoning on the point will serve it well in case of later challenge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.