The employee was a crane driver who had been certified unfit to work by his doctor because of various back problems. He was advised to avoid heavy lifting and sitting in the one place for long periods. His employer then received an anonymous tip off that he had not genuinely been off work. The employer did not obtain a witness statement from the informant but organised a surveillance investigation. Video evidence was obtained of the employee loading and unloading his car, which was inconsistent with his supposed medical condition. When the footage was shown to his doctor, he asserted that he would not have certified him unfit for work if he had been aware of this. After following proper procedure, the employee was dismissed.
He then claimed unfair dismissal, arguing that the employer should have (i) taken a statement from the anonymous informant and (ii) obtained a consultant’s report.
Both of these arguments were rejected. It was held that the employer had not been under any obligation to obtain a statement from the informant as this had not formed part of any investigation. The tip-off had merely triggered the investigation and there was no evidence to suggest that the employers had relied on the information provided by the informant in reaching their decision to dismiss. The absence of a statement from the informant was not therefore relevant to the reasonableness of the investigation. It was also held that there was no requirement for the employer to obtain a consultant’s report. The question for consideration here was the reasonableness of the employer’s conduct and it could not be said that an employer was not acting reasonably when he had sought and obtained the advice of an independent occupational health physician.
The result of this for employers is that if information received anonymously is not used in a subsequent investigation, there is no need to interview the informant (if identifiable) and take a witness statement. However, if the employer wishes to rely on the tip-off information and it is potentially part of a subsequent decision to dismiss, a witness statement should be taken, on an anonymous basis to protect the identify of the informant, if need be.