Managing Sickness Absence

A recent employment tribunal has delivered a landmark decision in the case of Kerita v BMW (UK) Manufacturing Ltd, confirming that covert surveillance of an employee on sick leave can lead to multiple legal breaches, including unfair dismissal, disability discrimination, and procedural unfairness. Employers should proceed with caution.

Background & Case Overview

Key facts: Mr Kerita, an assembly line associate at BMW UK, signed off work with a painful back injury which was later diagnosed as a disc protrusion. As a result, he was deemed disabled under the Equality Act 2010. Despite medical recommendations for lighter duties, BMW did not adjust his role, leading to repeated absences.

Surveillance: BMW engaged G4S to conduct covert surveillance, which recorded Mr Kerita walking and inspecting a car. These images were taken out of context and used to challenge the legitimacy of his sickness.

Procedural failings: Mr Kerita appealed his dismissal, as per union agreement, yet the appeal stalled, his pay was withheld, and the hearing was conducted in his absence under poor procedural handling.

 Tribunal Findings

1. Unfair & Wrongful Dismissal

The tribunal ruled that there were no reasonable grounds to suspect dishonesty. The tribunal found Mr Kerita had never claimed he couldn’t walk – only that he experienced significant pain when doing so. The employer was criticised for relying heavily on the footage without properly investigating or discussing it with Mr Kerita beforehand. Consequently, the unfair dismissal claim was successful.

Mr Kerita also won the wrongful dismissal claim. BMW were not entitled to summarily dismiss him without notice as his conduct was not a fundamental breach of contract.

2. Failure to Make Reasonable Adjustments & Disability Discrimination

The employer had a legal duty to consider changes to Mr Kerita’s role to support his return to work. The tribunal found BMW failed to make any real attempt to identify suitable alternative duties or roles, despite being advised to do so by occupational health.

3. Discrimination Arising from Disability

This type of claim arises when a disabled employee is treated unfavourably due to something connected to their disability, and the employer cannot show that the treatment was a proportionate way of achieving a legitimate business aim. In this case, the tribunal found that the warning issued to Mr Kerita amounted to unfavourable treatment. It placed him under a 12-month review period, significantly increasing the risk of dismissal under the company’s sickness absence policy. The warning itself was triggered by absences that were directly linked to his disability. Although BMW attempted to justify their actions, the tribunal concluded that the company should have first explored reasonable adjustments to his role, which might have reduced or avoided the absences altogether. As a result, this part of the claim was upheld.

Practical Takeaways for Employers

• Avoid assumptions based on surveillance: Covert recording is a “highly unusual step” likely to be hard to justify legally – and medical advice may even encourage limited activity during recovery.
• Prioritize dialogue and medical input: Engage openly with the employee, consult occupational health professionals, and maintain empathy alongside due process.
• Ensure fair procedure: Investigations, disciplinary actions, and appeals must be executed meticulously to remain within the “band of reasonable responses.
• Uphold disability duties: Make genuine attempts to accommodate workplace adjustments. Document and justify any decisions not to do so.

Covert surveillance of employees on sick leave carries substantial legal risks – especially where disability is involved. Employers are advised to focus on transparent, empathetic engagement, thorough procedural fairness, and proactive accommodation. These steps not only support legal compliance but also promote trust and employee well‑being.

Author: Rebecca Cargill, Trainee Solicitor

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice or information on updating your absence policies to ensure they meet both legal and ethical standards.

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