Tribunal Rules on Unfair Dismissal and Disability Discrimination

A recent employment tribunal has highlighted key issues around unfair dismissal and disability discrimination in the UK, ruling that a warehouse worker who was secretly filmed while off sick with chronic back pain was unfairly dismissed and discriminated against because of his disability.

Neil Wilson, employed by plastic piping manufacturer Aliaxis in Kent, was dismissed in June 2023 after 15 months’ absence. The tribunal in Ashford found that the company’s HR director, Joanne Askham, wrongly accused him of exaggerating his condition and prematurely cut off his income protection payments before a proper investigation was completed.

Dismissal Without Proper Investigation

Wilson, who suffered from myofascial pain dysfunction of the lumbar spine, was receiving sick pay through Aliaxis’s insurer, Unum. But after checking his social media and commissioning a private investigator, Ms Askham became convinced he was a “fraudster”. She asked Unum to stop payments, without giving Wilson the chance to respond.

The tribunal heard that Wilson was later confronted at what was described as an “informal welfare meeting” in March 2023. In fact, the panel said, it was a deliberate ambush where he was presented with three options: resign, face capability proceedings likely to end in dismissal, or risk being reported to the insurer’s fraud team.

Occupational Health Evidence Ignored

Although Aliaxis argued that Wilson was dismissed purely for capability reasons, the tribunal said the company had acted unfairly by ignoring a later occupational health report which confirmed he remained unfit for work. It ruled that a reasonable employer would have provided that report to the insurer and sought to have payments resumed.

The panel found that Wilson’s dismissal was both unfair and discriminatory under the Equality Act 2010. However, his separate claims for direct discrimination, harassment, and failure to make reasonable adjustments were rejected.

Surveillance Footage Misused

The judgment was also critical of how surveillance evidence was used. Videos of Wilson walking and attending family events abroad did not prove he was free of pain, the tribunal said, noting that his condition fluctuated and that the footage showed nothing inconsistent with his account of chronic but variable symptoms.

In its decision, the panel stated: “Any reasonable employer would, on receiving the OH report, have approached the insurer with a view to resuming payments. The respondent’s arguments to the contrary have, to the tribunal’s mind, more than a hint of wanting to have their cake and eat it.”

The unanimous ruling means Wilson succeeded in his claims for unfair dismissal and discrimination arising from disability. Remedies will be determined at a later hearing.

Need Advice on Unfair Dismissal and Disability Discrimination?

Terminating an employee’s employment is never an easy decision to make, whether on an individual or collective basis, and it is also not without risk. We can help you limit and manage any exposure to your business, giving clear and practical guidance on the process and procedure required to effect a “fair” dismissal.

Under the Equality Act 2010, employees are protected from discrimination on the grounds of age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity.

Contact Machins Solicitors’ employment law team today for expert advice on managing legal risks around unfair dismissal and disability discrimination, and ensuring your business remains compliant with employment law.