Corus UK Ltd v Mainwaring
When dismissing someone, employers have to act within a range of reasonable responses. In Corus UK Ltd v Mainwaring, the Employment Appeal Tribunal (EAT) said that it was not unreasonable for employers to dismiss following an anonymous tip off, as long as they carried out a reasonable investigation before doing so.
Basic facts
Mr Mainwaring had worked as a crane driver for 30 years, when he started suffering from back problems in 2002 resulting in long periods off work. He went off sick again in late January 2006 and saw Dr Bevan, the company’s occupational health doctor, on 16 March. He said that Mr Mainwaring should be able to return to light duties in two weeks’ time.
Following an anonymous tip off in early March, however, the company started watching Mr Mainwaring covertly. The video showed him unloading shopping from his car and walking along the street. Dr Bevan said that had Mr Mainwaring told him he could do these things, he would have recommended an immediate return to normal duties at work.
The company held an investigatory meeting on 27 March and then suspended him. At the disciplinary hearing on 7 April, Mr Mainwaring and his union reps argued that the shopping was not heavy and that he was taking light exercise, as his own GP had advised him to do. The company dismissed Mr Mainwaring and rejected his appeal.
Tribunal decision
Relying on the case of British Home Stores v Burchell, the tribunal said that the employer had to show they held a genuine belief after a reasonable investigation, and that “the reasonable investigation [had to be] within a reasonable range of responses for an employer.”
The tribunal found against the company, saying that it had been unreasonable in not taking an anonymous witness statement from the original complainant. It also said the company was unreasonable in failing to get an up to date report from his own GP as well as one from a specialist back doctor.
It decided that the company had a “mindset” to get rid of Mr Mainwaring, and so “had embarked on a course of action which no reasonable respondent would have embarked on.” This was highlighted by the fact that Mr Mainwaring was suspended (as opposed to being called in for questioning) before the surveillance programme was actioned. The dismissal was therefore unfair because the investigation fell outside the band of reasonable responses.
EAT decision
The EAT said the tribunal had been wrong to conclude that the company had been unreasonable in failing to take a witness statement from the informant. The company had not relied on anything the informant had said in coming to its conclusions. It had simply triggered the investigation. The absence of a witness statement was not, therefore relevant to “the reasonableness of the investigation or of Corus's conclusion.”
Nor did it think that the employer had a “mindset” to get rid of Mr Mainwaring. It said that the decision to suspend was not taken as a result of the anonymous tip-off but followed a surveillance operation, consultation with Dr Bevan and an investigatory meeting.
It also disagreed with the tribunal’s conclusions about the medical evidence available to the company. It pointed out that Corus had two letters from Mr Mainwaring’s GP, and that it was not necessary in the context of internal disciplinary proceedings to obtain a report from a consultant. It was therefore perfectly reasonable, in these circumstances, for Corus not to “obtain a consultant's report when [it] had sought and obtained the advice of an independent occupational health physician.”
And finally, the EAT criticised the tribunal for not considering whether the alleged flaws in the disciplinary process had been offset at the appeal. “Accordingly we conclude that the Tribunal fell into further error by failing in its consideration of the issue of fairness to take into account the appellate aspect of the whole disciplinary process as they were, by law, required to do.”
It therefore allowed the appeal and remitted the case to be heard by a different tribunal.