Welcome back, we hope you’ve all had a good Easter break and eaten (delete as appropriate) a healthy / unhealthy amount of chocolate.
This week’s case, somewhat surprisingly went to the EAT after an employee was dismissed for lying about the extent of his medical condition to gain early medical retirement.
There are two questions this week:
Can an employer dismiss an employee for exaggerating a medical condition?
Does an employer need to make reasonable adjustments for an employee who has exaggerated their disability?
Mr Edge, the Claimant, had worked at Viridor Waste, the Respondent, for 26 years prior to his dismissal. The Claimant had had a long medical history of degenerative musculoskeletal disorders, this was exacerbated by a car accident which resulted in him being off work for a year and a half.
All the doctors who examined the Claimant thought that his condition would make him unable to work again and suggested early ill health retirement. They came to this conclusion as the symptoms the Claimant described, including; being unable to walk without crutches, needing to wear a neck brace and often being unable to get out of bed due to severe joint pain.
The doctor believed he would be unable to do any strenuous activity, including; lifting, climbing stairs and extended periods of walking. The Respondent was told it would have to fund the Claimant’s retirement.
The Respondent received information that the Claimant was carrying out activities inconsistent with the doctor’s notes and arranged for an investigator to carry out covert surveillance. The investigator recorded the Claimant walking unaided round a supermarket, bending down, driving a van, lifting the tail gate of a car, lifting heavy bags of shopping, and assisting an elderly gentleman into and out of a vehicle. The Respondent showed the DVD to the Claimant’s doctor. The doctor stated that the extent of the Claimant’s condition would not qualify for medical retirement.
The Claimant returned to work but complained about having to turn his neck to read a screen behind him. A request to move the screen in front of him was not carried out and the Claimant stopped coming to work. An investigation into the Claimant’s absences and the contrasting medical reports was concluded and the Claimant was dismissed for improper absences and giving inconsistent medical evidence. His appeal was dismissed and the case went to Tribunal
The Tribunal found that the Respondent had unfairly dismissed the Claimant because, despite carrying out an investigation, the Respondent did not have reasonable grounds for dismissal. A claim for wrongful dismissal was upheld. The Respondent was also ruled to have discriminated against the Claimant by failing to make reasonable adjustments for the Claimant’s disability.
The Respondent appealed this judgment citing that the Claimant’s exaggeration of his condition meant they had grounds to dismiss him for his unauthorised absences and for a breach of trust. They also appealed against their failure to make reasonable adjustments as the Claimant was not disadvantaged by their failure to make any because he was absent from work at the time and did not return to work long enough for them to make any.
The appeals for unfair and wrongful dismissal were upheld. The EAT ruled that the Tribunal’s decision must have been perverse due to the overwhelming DVD evidence that the Claimant exaggerated his condition. The appeal against the failure to make reasonable adjustments was also upheld finding that the decision not to make adjustments was made after the Claimant stopped attending work.
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The answer to today’s questions are:
You can dismiss an employee for exaggerating their medical condition. Depending on the circumstances it could amount to gross misconduct or unauthorised absence.
Employers may need to make adjustments for employees who have exaggerated their condition, just because it has been exaggerated does not mean it is not real. A revised occupational health assessment would suggest what adjustments need to be made.