Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 239/16

 

 

CLAIMANT: Phillip Kane

 

 

RESPONDENT: Bombardier Aerospace UK

 

 

DECISION

The unanimous decision of the tribunal is that the claimant's claim of unfair dismissal is dismissed.

 

 

Constitution of Tribunal:

Employment Judge Murray

Mrs E May

Ms N Wright

 

Appearances:

The claimant was represented by Mr Reilly of the Ulster Law Clinic.

The respondent was represented by Mrs O'Lone of EEF Northern Ireland.

 

THE CLAIM

 

1. The claimant's claim was for unfair dismissal. The respondent's case was that the claimant was fairly dismissed for misconduct.

 

THE ISSUES

2. The issues for the tribunal therefore were as follows:

 

(1) Did the respondent, in the form of its managers who took the relevant decisions, believe that the claimant was guilty of the misconduct alleged and were there reasonable grounds for that belief following a reasonable investigation?

 

(2) Was the dismissal rendered unfair by reason of a breach of the claimant's human rights under Article 8 of the ECHR? Specifically, did the use of covert surveillance render the decision to dismiss unfair?

 

SOURCES OF EVIDENCE

 

3. The tribunal had witness statements from all the witnesses. The tribunal heard oral evidence from the claimant and his trade union representative, Mr Mills. For the respondent the tribunal heard evidence from Philip Lennon, HR Director; Dr Jenkinson, the OHS doctor in the respondent company; Colin McGowan, Operations Team Manager who dealt with the disciplinary hearing and took the decision to dismiss; Michael Bingham, Human Resource Business partner, who dealt with the appeal and confirmed the decision to dismiss. The tribunal also had regard to the claim and response forms, the documentation to which it was referred by the parties during the evidence, and the recording of the video surveillance of the claimant.

 

THE LAW

 

4. The right not to be unfairly dismissed is set out in Article 126 of the Employment Rights (Northern Ireland) Order 1996. At Article 130 are set out the potentially fair reasons for dismissal, one of which relates to the conduct of the employee.

 

5. The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303:

 

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question ... entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case".

 

6. The Northern Ireland Court of Appeal decision in the case of Rogan v the South Eastern Health and Social Care Trust 2009 NICA 47 endorses the Burchell approach and outlines the task for the tribunal in a misconduct dismissal case. The test is whether dismissal was within the band of reasonable responses for a reasonable employer. The tribunal must not substitute its own view for that of the employer but must assess whether the employer's act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances. This assessment applies to both procedure and penalty.

 

7. The statutory disciplinary and dismissal procedures must also be followed in relation to any dismissal. In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.

 

8. The parties referred the tribunal to the following legal authorities, all of which were taken into account in reaching our decision:

 

(1) British Home Stores v Burchell 1978 UKEAT 108

(2) Sainsbury's Supermarket Ltd v Hitt 2002 EWCA Civ 1588

(3) McGowan v Scottish Water EAT 2004 07/04

(4) City and County of Swansea v Gayle UKEAT 501/12

(5) Copland v UK

(6) Extracts from Harvey.

 

9. Harvey states at Division D1 Unfair Dismissal at paragraphs 1482.02 as follows, in relation to the ECtHR decision of Kopke 2010 ECtHR 420/07:

 

" The decision on this reference from Germany was that a supermarket was within its rights, and did not breach the Convention, when it used covert camera surveillance above the tills in its shop for a short period of time in order to discover which employee was responsible for thefts of money from the checkouts. This ruling is significant not only because it concerned such a common employment problem, but also because in the course of its judgment the Court set out four considerations, which may well form in practice a template for those advising in this area. They said that the factors which may legitimise the surveillance are that:

(1) suspicion had already been raised by other means (eg stock control);

 

(2) the surveillance was as limited as it could be;

 

(3) the employer had a considerable interest in both protection of property

and the administration of justice; and

 

(4)     there were no less intrusive options available."

 

10. The Gayle case which is an EAT decision from 2013 refers to several of the authorities including the Viagogo case referred to below. In the Gayle case the EAT confirms that an Employment Tribunal cannot adjudicate upon any free-standing claim of a breach of Article 8: the tribunal's task, rather, is to assess the reasonableness of the investigation and to assess whether the investigation lends proper weight to the reasons which inform the belief in the claimant's guilt of the misconduct.

 

11. The EAT in Gayle also refers to an employer's obligations under the Data Protection Act. It emphasises that the Data Protection Code is guidance rather than a statutory code and states:

 

" The code of guidance would be of no consequence unless and until the tribunal had come to a conclusion that there had been wrongdoing here".

 

The EAT stated further:

 

" It is not obvious to see why ignorance of a code which the employer was not bound in law to have regard to in any event would render an investigation into the wrongdoing of the claimant unreasonable when it would otherwise have been reasonable".

 

12. The Gayle case involved someone who was found to be playing squash at a leisure centre when he was "clocked in" to work and was being paid to work during those hours. Harvey comments on the Gayle decision at paragraph 1482.03: "It is perhaps a relief that the employee was not able to establish what was arguably the gist of his claim, namely a human right not to be found out". We find that this has some resonance in this case.

 

13. In this case it is our view that the claimant was found out to be able to do more than he was telling the doctors and when he became aware of this he tried to cover this by impugning the competence and integrity of the Occupational Health doctor (see below).

 

14. The Copland case is a European Court of Human Rights case which we do not find to be relevant to our deliberations as it involved monitoring of the claimant's telephone, email and internet usage for no good reason. That was an entirely different scenario to that in Mr Kane's case where he was observed carrying out activities in public view.

 

15. Article 8 of the European Convention on Human Rights states as follows:

 

"(1) Everyone has the right to respect for his private and family life, [and] his home ...

 

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of ... crime ... [or] for the protection of health ...".

 

16. In the McGowan decision the Scottish EAT considered a situation where an employer became suspicious that the timesheets completed by the employee Mr McGowan were being falsified. As a result the employer initiated covert surveillance on the employee to establish whether or not he was at work at the times his timesheets showed he was at his workplace.

 

17. As stated in that decision:

 

"The issue was solely whether or not Article 8 of the Convention was engaged and the appellant's rights in that respect breached, which would in turn taint the whole process, it was submitted, and, thus, render the dismissal unfair".

 

18. The EAT stated further:

 

"It is not the case where surveillance was simply undertaken for external or whimsical reasons. In our view, it goes to the essence of the obligations and indeed rights of the employer to protect their assets. ...

 

It has to be borne in mind that the suspicions of the employer were found to be established and the subsequent disciplinary process, which is not challenged as a matter of fairness, resulted in the appellant being dismissed on grounds of dishonesty, a very important aspect of the case".

 

19. In the Gayle case Mr Justice Langstaff took a stronger line in relation to these matters by finding that the question was whether an employee has a right to privacy when doing acts which were defrauding his employer company. In that case the employee was not at work when he claimed he was. The EAT found that there was no breach of the claimant's Article 8 rights at all, so justification did not have to be considered. However the EAT went on to state that if there had been an interference with Article 8 rights it would have been justified in circumstances where there were two legitimate aims, namely firstly the prevention of crime and secondly:

 

"the protection of the rights and the freedom of others being the employers whose money was at stake and who had contractual rights in agreement with the claimant that he would behave in a way in which as it happened he did not."

 

20. In Mr Kane's case, managers' concerns about the way the accident happened, together with concerns about the length of the claimant's absence led to concerns that he was exaggerating his symptoms with a view to boosting compensation in a personal injury claim which was likely to be imminent. In our judgment this was sufficient to give them a reason to authorise covert surveillance. In these circumstances it is irrelevant that the claim was not actually initiated until after the covert surveillance took place. In our view the employer's entitlement to protect its interests in relation to any such personal injury claim was engaged once the reasonable suspicions of the managers had been aroused.

 

FINDINGS OF FACT AND CONCLUSIONS

 

21. The tribunal assessed all the evidence both oral and documentary and reached the following findings of fact. The tribunal applied the relevant legal principles to the findings of fact in order to reach the following conclusions.

 

22. The claimant was employed at the respondent's Queen's Island premises from 1 September 2008 until 28 September 2015 when he was sacked for gross misconduct. At the time of his dismissal the claimant was a Lead Hand. The claimant had had a previous period of employment with the respondent, he had then left and had subsequently been re-employed on 1 September 2008.

 

23. The claimant had an accident at work on 1 December 2014 and was off work with back injuries following that accident.

 

24. In accordance with the respondent's procedures, the claimant attended the respondent's Occupational Health doctors on eight occasions in total between 10 December 2014 and 4 August 2015. The two key attendances for the purposes of these proceedings are those on 4 June 2015 and 10 July 2015 as the claimant's representations at those meetings later formed the basis of the disciplinary procedures against him.

 

25. The claimant also attended during this period three Medical Restriction Consultation meetings with HR Managers as part of the process for determining whether a return to work could be facilitated taking account of the claimant's medical difficulties. Those meetings took place on 25 May 2015, 8 June 2015 and 4 August 2015.

 

Covert Surveillance

26. The respondent company employs approximately 5,000 workers in Northern Ireland and on any one day has approximately 120 workers off sick.

 

27. Mr Lennon, who is the second-in-command in the HR division of the respondent's operation in Northern Ireland, took the decision on 28 May 2015 to authorise covert surveillance of the claimant due principally to the following:

 

(1) Concerns conveyed to him by his HR subordinates that there were concerns about the way the claimant's accident at work occurred;

 

(2) Concerns about the length of time the claimant was off and his complaints of the degree of restriction on his physical abilities. The company essentially had concerns about the genuineness and extent of the claimant's condition because of his slow recovery in light of managers' experience of other employees' absences;

 

(3) A belief that a claim would likely be lodged by the claimant in relation to his accident on 1 December 2014 and that there might therefore be exaggeration of his symptoms to boost any compensation. The claimant did actually initiate personal injury proceedings in July 2015 which was after the decision was taken to authorise surveillance.

 

28. Mr Lennon therefore asked the respondent's Head of Security to take the necessary steps to have the claimant put under covert surveillance.

 

29. We find nothing untoward in the decision of Mr Lennon to authorise surveillance for the follow principal reasons:

 

(1) He was of a sufficiently senior level to take that decision.

 

(2) This was a relatively rare thing to authorise for the respondent. We accept Mr Lennon's evidence that in his six years in his role he had authorised surveillance in approximately 10 cases. In a workforce of 5,000 where there are approximately 120 people off sick each day, this a small percentage of those cases;

 

(3) There were concerns (see paragraph 27(1)-(3) above) about the circumstances of the accident and the length of time the claimant was off and this led to a justifiable concern about a possible, fraudulent personal injury claim;

 

(4) Mr Lennon's understanding was that the surveillance would mean that, for a limited period, the claimant would be followed from outside his home to areas that could be seen by the public and that there would therefore be no expectation of privacy on the part of the claimant. It was therefore not a case of authorising unlimited or intrusive surveillance.

 

The Video Evidence

30. The covert surveillance involved observing the claimant on four dates in June 2015. The key date with which we are concerned for the purposes of this case is 29 June 2015. On that date the claimant was filmed laying several flagstones in the driveway at the front of his home. This activity took place where it could easily be observed by passers-by.

 

31. The claimant agreed with managers at all points that the video evidence did show him carrying out the tasks which were apparent on the recording. In tribunal he agreed that the video showed him engaged in heavy lifting without apparent restriction and without apparent pain.

 

32. It was the claimant's case that he was able to carry out the task on that day because he had taken his strong painkillers in the morning but that he suffered for several days after that date because of carrying out the task. In view of this account by the claimant we find it irrelevant to these proceedings that the recording was edited by the independent surveillance company from one hour to 11 minutes.

 

33. On the recording the claimant can be seen taking several phone calls in the course of carrying out the flag-laying. It transpired that at least one of those phone calls was with Sam Dobson of HR in the respondent company. The claimant's account was that he was engaged in trying to get Mr Dobson to get the doctor to lift the restriction on his ability to lift weights so that he could get back to work. Despite this the claimant did not mention to Mr Dobson in the telephone call that he was engaged in laying heavy flags without difficulty at that precise time.

 

34. On that day the claimant also attended with his GP, did not mention his ability to lift such heavy weights and indeed obtained a further "fit note" from his GP which stated that he was unfit to do any work for a further period of eight weeks.

 

35. The claimant attended with Dr Jenkinson on 10 July 2015, 11 days after laying the flags, and he did not mention having laid the flags nor that he had done so and had had problems in the days following that task. He did however mention to Dr Jenkinson at that consultation that he had tried to paint at home and had had difficulties doing so. He also told Dr Jenkinson that he had had difficulties with household tasks, with bending and stooping and with personal care matters such as putting on his socks.

 

Dr Jenkinson's Notes

36. A key part of the claimant's case before the tribunal was that Dr Jenkinson was, at best, inaccurate and, at worst, lying, by omitting to record that the claimant had told him that he was able to do heavier tasks, that he wanted to get back to work and that he wanted the 5kg restriction on lifting weights which had been imposed by the doctor to be lifted. We reject the claimant's case in this regard and accept the accuracy of Dr Jenkinson's notes and his assessment of the claimant at the relevant time for the following principal reasons:

 

(1) We do not accept that the claimant "begged" Dr Jenkinson to let him get back to work and to remove the restriction. If this had occurred it was completely at odds with the claimant's continued GP fit notes which certified him unfit for any work. In this regard it is significant that the GP fit note has several options on it for the GP to indicate if there are suggestions which can be made to get someone back to work on restricted duties; none of those was completed until the sick line after the meeting when the claimant was confronted with the video evidence.

 

(2) Dr Jenkinson's notes accord with the notes of the Medical Restriction Consultation meetings which took place in August 2015.

 

(3) The fact that the claimant was able to manoeuvre heavy patio flags (which everyone agreed in tribunal weigh about 32 kgs each) was an extremely significant point to make if it was indeed the case that he wanted to persuade the doctor that he could get back to work and could do heavier work than the 5kg lifting restriction placed on him by the doctor. In these circumstances we find it entirely implausible that the claimant simply forgot to mention that, especially as he mentioned other tasks in detail to the doctor.

 

(4) We accept Dr Jenkinson's account that the taking of the painkilling drugs in the morning of 29 June 2015 would not explain the range of movement shown by the claimant on the video, given that the relevant drugs would not have taken effect by the time of the activities on the video.

 

The Disciplinary Process

37. The claimant did not impugn the process adopted in the disciplinary and appeal stages. We find nothing untoward with the processes and in particular we find that there was compliance with the Statutory Dismissal Procedure.

 

38. Following an investigation, it was decided that the claimant would be subject to disciplinary proceedings.

 

39. The claimant was notified by letter of 10 September 2015 of the charges against him as follows:

 

"The disciplinary hearing in is [sic] relation to allegations of gross misconduct, specifically:

 

•          Untruthful representation of your medical condition presented at Company OHD appointments and medical restriction consultation meetings on the following dates:

 

4 ^th June 2015 - Occupational Health appointment

10 ^th July 2015 - Occup0ational Health appointment

4 ^th August 2015 - Medical restriction consultation meeting

8 ^th June 2015 - Medical restriction consultation meeting

25 ^th May 2015 Medical restriction consultation meeting

 

•          The information that you presented at your Occupational Health appointments on 4 ^th June and 10 ^th July resulted in you getting a temporary, and subsequently permanent, medical restriction preventing you from frequent bending and stooping and avoiding lifting weight heavier than 5kg.

 

•          You were observed on 29 ^th June 2015 laying a patio which involved bending, stooping and heavy lifting. It is alleged that there is a disparity between your testimony given at various points in time regarding your condition and that shown through material captured on camera through Company sanctioned surveillance.

 

•          You have been absent from the workplace on sick leave since 2 ^nd December 2014 and you were in receipt of Occupational Sick Pay until 15 ^th April 2015 when your entitlement exhausted.

 

If found to be true, the Company would regard such falsification of information as conduct that is liable to lead to a breakdown of trust and confidence that the Company is entitled to expect. I enclose para 9.5.3 of the Employee Handbook which expressly states that this can be considered to be gross misconduct of which a possible outcome is dismissal without notice."

 

40. The disciplinary hearing took place on 23 September 2015 and the disciplinary outcome meeting was 28 September 2015. At that outcome meeting the claimant was told that he had been found guilty of gross misconduct, namely conduct liable to lead to a breakdown of trust and confidence. The claimant was summarily dismissed.

 

41. The claimant was given the outcome in writing in the letter of 28 September 2015 and was advised of his right to appeal. The claimant appealed and the appeal hearing took place on 17 November 2015. The outcome of the appeal was that the decision to dismiss was upheld.

 

42. The claimant was accompanied by his trade union representatives at both disciplinary and appeal meetings and had a full opportunity to put forward his points.

 

43. We find that the actions of the employer as regards disciplinary process and penalty were within the band of reasonable responses for a reasonable employer and the dismissal was therefore not unfair. Our primary reasons for so finding are as follows:

 

(1) The respondent's managers were entitled to rely on the medical opinion of Dr Jenkinson when he saw the video footage. Dr Jenkinson's opinion was that the activities engaged in by the claimant in the video footage were incompatible with the account given to him at the consultations in June and August and he therefore believed the claimant had been untruthful in his account of the extent of his difficulties.

 

(2) The doctor's opinion was that the taking of the painkillers did not explain the range of movement shown on the video.

 

(3) At tribunal the doctor explained that in a medical assessment he relies very heavily on the history and account of symptoms given by an employee. He also had the GP fit notes indicating that the claimant was unfit for any work. On the claimant's account to Dr Jenkinson he had difficulty with basic household and personal care tasks and this was the reason for the doctor's restriction on lifting to 5kg. It was the doctor's opinion that if the claimant had been truthful in relation to the level of difficulties he had with his back, he would have exhibited some sort of hesitancy or caution on the video in relation to the heavy tasks in which he was engaged. As there was no sign of that on the video, the doctor doubted the veracity of the account given to him by the claimant.

 

(4) We were given no reason by the claimant for the doctor to have any motivation to disbelieve him. Dr Jenkinson, as a responsible OH doctor, was exploring ways of helping the claimant get back to work by taking account of his reported difficulties and by setting out the restrictions that should be placed on him. The restrictions were placed on him by the doctor because of the claimant's account of the severity of his symptoms coupled with the GP fit-notes which said he was not fit to work at all.

 

(5) We reject the claimant's allegation at tribunal that the company was "out to get him" because he had had an accident and was likely to make a personal injury claim. We reject that contention primarily because the claimant had previously had an accident, had obtained compensation, had left the respondent and had then been re-employed by them.

 

(6) The claimant made the case in tribunal that there was evidence which could have been sought by the employer in the form of Consultants' reports which were amongst the claimant's GP notes and records. None of the Consultants' reports were before the respondent but they were however before the GP when she wrote her sick lines to say that the claimant was not fit to work at all. Presumably the GP wrote those sick lines on the basis of the account given by the claimant of the severity of his symptoms. We reject any suggestion that it is for the employer's Occupational Health doctor to ferret out all possible medical evidence which may be in existence in circumstances where it is open to the claimant and/or his doctor to challenge any restrictions placed on his ability to work by the Occupational Health doctor. It was open to the claimant to ask his doctor to forward the consultants' reports to Occupational Health if they were relevant.

 

(7) The claimant was given the opportunity to provide any further evidence at both the disciplinary hearing and the appeal hearing and he chose not to produce the Consultants' reports at that point. In any event the fundamental point was that the Consultants' reports reflected a condition which was less serious than the account given by the claimant to the OH doctor and, presumably, to his own GP.

 

44. We found the claimant's evidence to be unsatisfactory in several respects as follows:

 

(1) We do not believe that he was begging Dr Jenkinson to get him back to work because he was able to do more than Dr Jenkinson was giving him credit for. This is completely at odds with what the fit-notes from his own GP showed which was that he was not fit to return to work at all.

 

(2) The claimant made clear at the CMD in March 2016 that he alleged that the doctor was lying when he recorded things which were at odds with what the claimant said he told the doctor. In tribunal hearing the claimant was very reluctant to allege that the doctor was lying, presumably because he could give no motive whatsoever for the doctor to do so.

 

The Human Rights Point

45. Mr Reilly submitted that the claimant's Article 8 rights were infringed when the covert surveillance was authorised as the claimant had a reasonable expectation of privacy in relation to the location of the activities shown on the video. Mr Reilly did not allege that the act that the claimant was engaged in meant that he had a reasonable expectation of privacy.

 

46. We reject the claimant's contention on this point. The claimant was engaged in an activity in full view of the public in his driveway and had no reasonable expectation of privacy in respect of that activity. In addition, the legal authorities are clear that if someone is potentially engaged in fraud, they can have no reasonable expectation of privacy. Under the Viagogo case [2011] Court of Appeal, if someone is engaged in "arguable wrongdoing", he can have no reasonable expectation of privacy in relation to data collected. Similarly in the McGowan case where video evidence was undertaken in public view, the person involved was held to have no reasonable expectation of privacy.

 

47. In view of our findings in this point, we find that the claimant's Article 8 rights were not infringed in this case. We therefore do not have to look at whether the interference with any such rights was necessary and proportionate. If we had been called upon to do so, we would have found any interference to be proportionate in view of the following: that there were concerns about whether the claimant was engaged in fraud; the surveillance was limited to a short number of days over a short period; and proper consideration was given by a Senior Manager to the necessity of directing covert surveillance.

 

48. The Data Protection code is not a statutory code, but provides guidance on an employer's duties to comply with the Data Protection Act (DPA).

 

49. Specifically we reject the claimant's contention that the parts of the Code relating to collecting and keeping sensitive data in relation to the worker's health apply in this case and we therefore reject any suggestion that that part of the Code is engaged. What was involved in this case was an assessment of whether or not there was arguable wrongdoing going on in the sense that the claimant was possibly being untruthful in representing to the respondent's doctors that he had more severe restrictions on his ability to carry out certain tasks than he actually had. In short, obtaining a video showing a man engaged in heavy lifting by laying flagstones in full view of the public at his home does not amount to collecting sensitive medical data on that person.

 

 

SUMMARY

 

50. We therefore find that the elements of the Burchell test as approved in Rogan, are satisfied namely as follows:

 

(1) We accept that the respondent's Managers believed the claimant was guilty of misconduct.

 

(2) We accept that they had formed that belief following a reasonable investigation. In particular it was reasonable for them to rely on the doctor's assessment of the impact of the video on the truthfulness of the account given by the claimant to the doctor at medical examinations.

 

(3) The actions of the employer as regards process and penalty were within the band of reasonable responses for a reasonable employer in the circumstances.

 

51. The claimant was dismissed for misconduct and that dismissal was fair. The claimant's claim of unfair dismissal is therefore dismissed.

 

 

 

Employment Judge:

 

Date and place of hearing: 10-12 August 2016, Belfast.

 

Date decision recorded in register and issued to parties: