Playing Doctor

A former prison officer has lost her case alleging unfair dismissal after being dismissed for what the employer alleged was gross misconduct. I am not sure, based on the judgement, that that is the right decision given the centrality of the first disciplinary allegation to the dismissal, the uncertainty on my reading of the real reason for dismissal (conduct or SOSR), the failure to investigate exculpatory evidence, and the fact that dishonesty in the investigation process (the central reason the dismissal was found fair) was not itself an allegation put to the claimant and it will be interesting to see if there is any appeal.

In disciplinary proceedings the clamant was represented by her union (POA) although it is unclear whether they supported the case to tribunal (one would hope so).  In Clarke v Secretary of State for Justice (2020) the central concern was that the claimant, while on restricted duties because of health conditions had gone on a skiing holiday which, the Prison Service believed showed she was abusing her sick leave and acting dishonestly.

The employment judge was critical of the employer and found that there was no reasonable basis for the employer finding that Ms Clarke had been dishonest in respect to falsely claiming to be sick but nevertheless found the dismissal was fair but the reasons for this are not important for this post (despite being, in my view, harsh and certainly suspect). The essence of the case was that Ms Clarke was on restricted duties following illness with post head injury concussion syndrome that absence was supported by medical evidence from various sources, up to and including a consultant’s report which the employer was aware of.

The employer had, at the time, evidence of her medical condition but also had obtained a photograph of the claimant (from where it is not stated) which showed the claimant and her friends in skiing gear, specifically googles and a helmet, but the photograph did not show whether she had skis on her feet (which would show definitively that she was skiing). Despite this Governor concluded “that in February 2019 the claimant had “been well enough to go on a skiing holiday .. and therefore I could only conclude that she was well enough to undertake full operational
duties at work at that time and after.”

It is here that the employer made a fundamental error. How, exactly could the employer effectively overrule the medical advice it had received that the claimant was not fit for full duties based on the conclusions of a prison governor who was not medically qualified? The simple answer was it could not reasonably do so. In the absence of any medical advice commissioned by the employer on whether a person could ski and still not be fit for full duties the employer could have no reasonable belief that the claimant had engaged in the conduct alleged (falsely claiming to be unfit for work).

I have touched in this type of situation before but the case is a helpful reminder for employees.  The minute an employer is making health related conclusions without conducting a reasonable investigation on this issue which will always mean either instructing an independent report, report from the employee’s own medical practitioners, or their Occupational Health advisers then the employer is likely to be vulnerable to complaints they do not have a reasonable belief the employee engaged in the alleged misconduct.

 

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