Is surveillance during sick leave ever justified?

August 6, 2025

What happens when workplace suspicion overrides medical evidence? In Kerita v BMW (UK) Manufacturing Limited, a disabled factory worker, suffering from chronic back pain, was unfairly dismissed and discriminated against after his managers used covert surveillance because of suspicions that he was exaggerating his symptoms.

Background

Mohamed Kerita began working for BMW’s Oxford based factory in 2015 as an assembly associate. Due to the physically intensive nature of the role, BMW had arrangements in place for physiotherapy support and job rotation to prevent strain injuries.

In 2017, Kerita developed chronic back pain following a new task, resulting in reoccurring episodes that persisted despite physiotherapy. He remained in work with the support of physiotherapy. In July 2020, Kerita’s GP advised adjusted duties, and both his GP and physiotherapist recommended that he undertake lighter tasks. He was later diagnosed with disc protrusion, a condition known to cause chronic back pain and weakness.

Although BMW referred Kerita to Occupational Health, which confirmed that his normal duties were aggravating his condition and recommended a workplace assessment, BMW failed to act on these findings. In January 2022, following a short period of sick leave, Kerita was issued with a formal absence warning covering three absences, despite being related to his back condition and supported by medical evidence.

Kerita appealed the warning, highlighting that the recommended adjustments had not been implemented. His GP supported this, and the appeal was upheld. However, BMW did not decide to move him into a more suitable role. In May 2022, Kerita’s physiotherapist warned that continued work was worsening his condition. BMW continued to not respond or adjust his duties.

In early 2023, a consultant at a pain clinic confirmed that Kerita’s condition had deteriorated, in part due to work related anxiety and pressure. Despite being signed off work for a further two months, in a subsequent conversation, Kerita’s physiotherapist expressing concerns that Kerita should have returned to work by then, and that he was unable to explain the level of pain Kerita reported. The physiotherapist had never discussed these concerns with Kerita, nor obtained consent to share them with management. These statements led to increased suspicion among Kerita’s managers.

In March 2023, BMW authorised covert surveillance on Kerita through the private firm G4S. The footage showed him walking approximately three miles over 90 minutes and bending down briefly to inspect a car. Although the footage lacked any clear signs of pain, it also did not show Kerita’s face and failed to accurately reflect the fluctuating nature of chronic pain conditions. BMW concluded from the video footage that Kerita had been dishonest and dismissed him for gross misconduct based on alleged fraudulent sick pay claims and excessive absence.

Decision

The Tribunal concluded that the dismissal was both unfair and discriminatory. The Tribunal further determined that BMW lacked reasonable grounds to dismiss Kerita, as Kerita had been unfit for work, confirmed by his GP, and was not receiving sick pay during the surveillance period. The panel held that BMW misunderstood Kerita’s descriptions of his limitations and jumped to conclusions based on incomplete evidence.

Crucially, the Tribunal accepted that Kerita was disabled, and that BMW had failed to make reasonable adjustments, despite being aware of his condition. The panel also criticised BMW for showing a pattern of scepticism towards employees with back conditions, suggesting an underlying culture of distrust.

The Tribunal ruled in Kerita’s favour on his claims of unfair dismissal, direct disability discrimination and failure to make reasonable adjustments.

Lessons for employers

This case offers clear takeaways for employers: –

  • Covert footage can be misleading and should never be relied upon without context. Surveillance evidence must be qualified and cannot replace a proper medical assessment.
  • Decisions must be based on facts, not preconceptions about a condition or an employee’s honesty.
  • Ignoring medical recommendations or failing to explore suitable roles can amount to discrimination.
How can we help

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.

Darren Smith
Partner, Employment
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