Employment Law – Unfair Dismissal – Absence From Work

Mainwaring v Corus UK Ltd [2007] dealt with allegations of wrongful dismissal of an employee due to long periods of absence triggered by the employee’s back problems. For over 30 years, the employee had worked as a crane driver. He started to experience back problems in 2002, which forced him to miss work for extended periods of time. Visit Geonetta & Frucht, LLP – Oakland.

He took time off work again in late January 2006 due to his back injury. He went to his doctor, who recommended medicine as well as physiotherapy. He was told to stay healthy, to do regular exercises as pain allowed, and to avoid heavy lifting and sitting for long periods of time.

During his absence, the employee was seen on a daily basis by B, an occupational therapist hired by the company. By March 16th, the employee’s health had improved to the point that B estimated that he would be able to return to light duties in two weeks, though he was still not fit for full-time work.

However, in early March, the employer received an anonymous ‘tip-off’ from one of the employee’s coworkers, alleging that the employee was behaving outside of work in a manner inconsistent with his genuine absence due to back problems.

The employer did not obtain a witness statement from the informant, but it did decide to place the employee under surveillance. As a result, the employee was videotaped three times between the 9th and the 16th of March. He was seen loading and unloading groceries from his car’s boot on two of those occasions.

After seeing the video, B came to the conclusion that if the employee had told him he was capable of performing certain duties, he would have recommended that he be allowed to return to work with no restrictions.

An investigatory meeting was held on the 27th of March, during which the employee was suspended pending the results of a disciplinary investigation. The employee was summoned to a disciplinary hearing, which R, the employer’s production manager, held on April 7th.