Employment & Pensions Blog: Spying on Employees During Sickness Absence - Mr Kerita v BMW (UK) Manufacturing Limited

The issue of employers monitoring their employees is nothing new, and it is common for employers to monitor their employees at least to some degree. Monitoring working hours, use of emails and company mobiles, and employee use of company vehicles through trackers are all quite common (albeit the appropriate policies and privacy notices should be in place).

However, BMW went a quite a few steps further in a recent case and covertly surveyed one of their employees because they suspected he was exaggerating the severity of his back condition and did not trust that his sickness absence was genuine.

Background

Mr Kerita was employed as an Assembly Associate at one of BMW’s factories, a role which involved significant physical labour. Between 2017 and 2022, Mr Kerita reported recurring back pain and was taking medication to try and manage it.

It was subsequently confirmed that Mr Kerita had a significant spinal condition and, while manoeuvring heavy equipment at work, he experienced a sudden and extreme bout of pain and collapsed. He did not return to work after this incident, and he commenced an ongoing period of sickness absence. He engaged regularly with BMW’s physiotherapy service and consented to medical reports being shared with his managers, all of which noted that he was not fit for work.

Surveillance and Disciplinary Hearing

A conversation between BMW’s physiotherapist and Mr Kerita’s line manager led to doubts about the severity of his condition. The physiotherapist remarked that treatments seemed ineffective and expressed confusion about his continued absence, which prompted BMW to instruct an external company (G4S) to carry out covert surveillance on Mr Kerita.

Investigators filmed Mr Kerita over a 1.5-hour period during which he walked approximately 3 miles and on one occasion bent down to examine the side of a car. Despite the film not capturing his face and offering no insight into his pain levels, the report concluded there was no visible sign whatsoever that he was in any discomfort or was experiencing any sickness or dizziness.

Mr Kerita was invited to a disciplinary hearing to answer misconduct allegations of fraudulently claiming company sick pay and having an unacceptable level of absences. He was given G4S’ investigation report and copies of the video clips they took during the surveillance. BMW dismissed Mr Kerita for gross misconduct.

Mr Kerita brought claims for failure to make reasonable adjustments, direct discrimination, discrimination arising from a disability, unfair and wrongful dismissal.

Employment Tribunal (ET)

The ET found multiple failings in BMW’s handling of the case, and they lost on all counts.

• Unfair Dismissal: BMW’s dismissal was based on the assumption that Mr Kerita had misled the company, despite his consistent explanations for his sickness. Mr Kerita had been clear that he had difficulty walking more than 20-30 metres, and BMW inaccurately took the view that ‘had difficulty’ meant he could not walk more than this distance and the covert surveillance was proof he was lying. In short, the covert video clips did not show Mr Kerita’s face as proof it was him, and (even if it was) it didn’t contradict the explanations he had given for his sickness absence. The decision to terminate his employment for gross misconduct was unreasonable in the circumstances, and the disciplinary process was found to be procedurally flawed and unreasonable.
   
• Wrongful Dismissal: Since Mr Kerita had not committed any gross misconduct, BMW was not entitled to terminate his employment without notice.
   
• Failure to Make Reasonable Adjustments: BMW could have moved Mr Kerita to a less physically demanding role. Although Mr Kerita identified alternative roles that he felt he could do that would mitigate the physical impact of his condition, BMW claimed there weren’t any available. However, BMW failed to provide any evidence that there were no suitable positions available, and the Tribunal found it difficult to believe this was the case over the 21-month period in question. 

In addition to not redeploying him to another position, BMW had also failed to make adjustments to Mr Kerita’s substantive role to allow him to continue working in it.

• Direct Disability Discrimination: The ET held that BMW’s managers demonstrated a level of distrust or hostility towards people with back conditions, to the extent that they even took the highly unusual step of covertly surveying Mr Kerita to test their view. This was despite the fact they had not mentioned their suspicions to Mr Kerita, and their own physiotherapists had accepted that he was not fit for work. BMW could not satisfy the Tribunal that Mr Kerita’s dismissal had nothing to do with his disability, and therefore the direct disability discrimination claim was upheld. 
   
• Discrimination Arising from Disability: BMW had given Mr Kerita formal warnings under their sickness absence procedure because of his ongoing absence from work. However, whilst these types of warnings are sometimes perfectly acceptable, in this instance the warnings came at the same time BMW had failed to make reasonable adjustments. The ET found that the proportionate thing for BMW to do was to make those reasonable adjustments, not to issue a formal warning under its sickness absence procedures. Mr Kerita’s discrimination arising from a disability claim was therefore upheld.

Comment

At a time where workplace sickness absence rates are surging, this case is a useful reminder to employers not to jump to conclusions if they see an employee doing something on social media or see them out and about during a period of sickness absence. Being too unwell to work does not mean the employee must be house/bed bound.

Equally, covertly following employees when they are out in the world is a complex issue that requires privacy and data protection considerations, as well as issues of reasonableness and fairness. The ET in this case noted how highly unusual it was for an employer to take this step, predominantly because it will rarely be justifiable for them to do so.

This case reinforces the importance of adhering to fair procedures during disciplinary and sickness management processes, and BMW’s failure to do so will now end up costing them thousands.

If you require any further assistance or support in matters involving disciplinaries or sickness absence, or any other employment related matters, please contact a member of the Employment Team.