Mr A Jones v Pilkington UK Limited HELD AT: Manchester (by CVP) — 2022

Mr Jones worked for Pilkington UK Limited from 1 November 1983 until his dismissal on 14 October 2019. The tribunal accepted that he was disabled within section 6 Equality Act 2010 by reason of his conceded physical impairment, and it also found that depression and anxiety were a disability at the material time, drawing on evidence from 2018 and 2019 about referral to Mind Matters, CBT, medication, and relapse around the disciplinary process.

The case arose after Pilkington received information suggesting Mr Jones might be working elsewhere while off sick, and the respondent arranged covert surveillance on 8 and 10 May 2019. The tribunal found the footage showed limited activity at a friend's farm and did not support the suspicion of secondary employment. It held that the investigation became confused once the allegation shifted from secondary employment under the sickness procedure to physical activity inconsistent with sickness absence, and criticised the late disclosure of the video evidence, the combination of welfare and investigatory meetings, and the pressure to reach a quick decision.

On the section 15 Equality Act 2010 claim, the tribunal held that dismissal was unfavourable treatment and that the respondent's belief that Mr Jones had been undertaking physical activity while off sick was something arising in consequence of his physical disability. It did not accept that his attendance at the farm was sufficiently connected to depression and anxiety for section 15 purposes. The tribunal accepted the respondent's stated legitimate aim of protecting recovery time and the sickness scheme, but found the dismissal was not a proportionate means of achieving that aim because management did not properly use the sickness policy's medical-adviser route once the concern moved beyond a secondary-employment allegation.

The unfair dismissal complaint succeeded because, although conduct was accepted as the principal reason for dismissal and a potentially fair reason, the decision fell outside the range of reasonable responses. The tribunal relied on the Burchell approach and section 98(4) ERA 1996, and also took account of the ACAS Code and the Polkey principle when assessing procedure. It found contributory conduct by Mr Jones at 20% and said an ACAS uplift of 15% would be appropriate, but remedy was left to a later hearing and no award was fixed in this judgment. The breach of contract claim also succeeded because the conduct found was not sufficiently serious to justify summary dismissal without notice.