Fenland council worker contributed to his job loss says employment tribunal, but he was not guilty of gross misconduct

A pilot boat worker dismissed for gross misconduct by Fenland District Council was 50 per cent responsible for the loss of his job an employment tribunal has concluded.

The conclusion came at the end of the hearing held in Cambridge which heard evidence that included a whistleblower’s video recording of the employee, Mr R Eaton, out shooting in a field, even though he was signed off with a bad back and was claiming to be unfit for work.

Mr Eaton claimed he was unfairly dismissed by the council in December 2016 while he was signed off work as mechanic/crew member on pilot boats at Port Sutton Bridge and Wisbech.

The tribunal, heard by employment Judge GP Sigworth, involved evidence from three witnesses for Fenland Council as well as oral evidence from Mr Eaton and concluded he was unfairly dismissed.

However, Judge Sigworth also concluded Mr Eaton was partly to blame for losing his job because he did not "communicate with the Respondent" or have "appropriate conversations" with his doctor.

Mr Eaton,was signed off with a back injury and PTSD following an accident at work in February 2016 when a cargo ship carrying 4,000 tonnes through the Cross Keys Bridge smashed into the pilot boat, which resulted in Mr Eaton having to jump off on to a pontoon and then on to the bank.

From then on Mr Eaton, who was 62 at the time of the accident, submitted sick notes from his GP and received full pay.

During his 10 month absence there was talk of him returning to work on light duties, but Judge Sigworth concluded Mr Eaton had obstructed the process and “may have positively asked his GP not to suggest this”.

In July the council received an anonymous tip off from a member of the public who claimed they had filmed Mr Eaton walking across a ploughed field carrying a shotgun.

The whistleblower claimed to have seen Mr Eaton climbing up and down from a combine harvester whilst it was moving and claimed Mr Eaton “appeared to be active at all times and not be in any pain.”

The council decided to commission a private investigator’s report which lead to Mr Eaton being secretly filmed over two days in November 2016, when he was seen to “carry out heavy duty tasks” including lifting potato sacks and cleaning windows.

By December Mr Eaton had received £17,836.44 in sick pay and was further signed off for eight weeks.

He was dismissed following a disciplinary hearing on December 15 - a decision he appealed and lost in January 2017.

Judge Sigworth said the council’s reason for dismissal was conduct and that the authority’s case put simply was Mr Eaton had avoided a return to work and thereby received sick pay to which he was not entitled and he “misled his GP” to get signed off work.

Judge Sigworth said the council’s misconduct case was hampered by the fact Mr Eaton was covered “at all times” by a GP note. He said Mr Eaton had not been dishonest and did not lie, therefore “I conclude that the situation got nowhere near to a misconduct allegation of fraud”.

He said the council’s allegations “seem to have been a knee jerk reaction to a complaint from a member of the public".

He concluded: “There is insufficient evidence even to establish a lesser misconduct allegation.”.

Judge Sigworth said: "I conclude that the dismissal was outside the band of reasonable responses and therefore unfair."

However, he concluded there was “culpable and blameworthy conduct” on the part of Mr Eaton which led to his dismissal.

“The fact is that the Claimant could have prevented his dismissal by a reasonable approach to communication with the Respondent and appropriate conversations with his GP. I conclude there is a very substantial element of fault in this case on the part of the Claimant, and the appropriate reduction in his compensation for contributory fault should be 50 per cent,” said the Judge.

He also concluded there was a 25 per cent chance Mr Eaton would have resigned if he was required to return to work and therefore compensation should be reduced accordingly.