In the manufacturing sector, where productivity and safety are paramount, many employers reasonably wish to monitor employees.
Our Manufacturing Lawyers explore the recent case of Kerita v BMW (UK) Manufacturing Limited, which sheds greater light on the extent to which employers can monitor their employees, particularly in relation to employee absences.
This case underscores the legal boundaries around surveillance, the importance of accurate medical interpretation, and the duty to make reasonable adjustments for disabled employees.
Employers should take note of the procedural missteps and discriminatory assumptions that led to a successful claim against BMW Manufacturing, as discussed below.
Background
Following several periods of absences during his employment, Mr Kerita’s ongoing back pain was diagnosed by a specialist spinal surgery unit as a disc protrusion, which was impacting a spinal nerve.
Mr Kerita was subsequently referred to occupational health, which concluded that he was likely to be deemed disabled under the Equality Act 2010.
For example, Mr Kerita’s ability to complete a 2-minute plinth sit was at odds with his claim that he was unable to sit still.
The recording did not show Mr Kerita’s face, and there were no visible expressions of pain. Following this initial period of surveillance, BMW Manufacturing also considered obtaining further funding for additional surveillance of Mr Kerita, reportedly “to ensure [a] robust outcome”, albeit no further surveillance was ultimately conducted.
Mr Kerita subsequently appealed the decision but was unable to attend the appeal hearing due to a pre-booked appointment. Nevertheless, the appeal hearing proceeded with him and upheld the dismissal.
The Employment Tribunal’s Decision: Unfair Dismissal, Reasonable Adjustments, and Disability Discrimination
Unfair Dismissal
Although conduct is a potentially fair reason for dismissal under the Employment Rights Act 1996, the Employment Tribunal determined that BMW Manufacturing had fundamentally misunderstood what Mr Kerita had informed them in relation to his medical condition.
The employer had incorrectly assumed that Mr Kerita was unable to walk for more than 20-30 metres, when he had repeatedly informed the employer and the physiotherapist that he experienced pain, sickness, or dizziness after walking for some time, not that he was fundamentally unable to walk.
Given the employer’s incorrect assumptions of Mr Kerita’s physical condition and the fact that the surveillance recordings did not show Mr Kerita’s face, the report could not accurately conclude whether he was experiencing ‘pain, sickness or dizziness after walking’, the Tribunal concluded that Mr Kerita was entitled to sick leave and sick pay.
- The employer had failed to carry out a sufficient investigation of the facts
- The appeals procedure set out within an agreement with Mr Kerita’s union was not followed as he was not paid during his appeal
- The employer did not rearrange the appeal hearing when it was informed that Mr Kerita was unable to attend
Failure to Make Reasonable Adjustments
In this case, both the occupational health advisor and Mr Kerita’s GP had recommended that Mr Kerita be redeployed into a less physically demanding role on the production line.
Mr Kerita claimed that other medically restricted employees were permitted to change to such roles.
The Tribunal concluded that the employer could reasonably have been expected to move Mr Kerita to an alternative role.
Disability Discrimination
The employer was unable to satisfy the Tribunal that Mr Kerita’s dismissal was unrelated to his medical condition, and Mr Kerita was successful in his claim of direct disability discrimination.
Since the formal warnings given to Mr Kerita regarding his sickness absences were at a time when the employer had failed to make reasonable adjustments, the employer’s decision to issue formal warnings was deemed by the Tribunal not to be a proportionate means of managing the workforce and enforcing standards of conduct.
Consequently, the Employment Tribunal held that Mr Kerita’s claim for discrimination arising from disability was successful.
Comment
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Our Employment Law and Manufacturing team can guide you through complex cases involving surveillance, sickness absence, and disability discrimination.
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James Banks
Trainee Solicitor
James joined as a Trainee Solicitor at Myerson in 2024. Prior to joining the firm, James graduated from Durham University with a First Class Honours LLB. He is currently completing the SQE qualification with BPP University in Manchester.
About James Banks