Judge rules staff ‘off sick’ can visit pubs
29 June 2021
Mr Kane, was employed by Debmat Surfacing Ltd as a driver from 1 September 2012 until 30 July 2020 when he was dismissed for gross misconduct relating to ‘dishonesty and breach of company regulations’
Mr Kane, who suffered from COPD, called in sick on 9 March 2020 and had later been seen drinking and smoking at a Social Club close to the workplace by a colleague.
Mr Kane denied being at the club on the 9 March 2020; although accepted when questioned by the Company, that he was there on the following day whilst still absent from work due to his ill health.
Mr Kane brought a claim for unfair dismissal and having heard all of the evidence, the Employment Tribunal held that the dismissal was unfair. The Tribunal heavily criticised the investigation undertaken by the company during the disciplinary process. They did not take statements from potential witnesses which led to confusion over dates, and did not make enquiries as to the origins or source of photographic evidence received. The Tribunal found that the Company had untaken no investigation whatsoever other than to speak to Mr Kane before commencing disciplinary proceedings. It was also prevalent that witnesses to the allegations were the very same people as who were involved in the investigation and disciplinary decision making process and highlights the need to give consideration to the appropriateness of who conducts each stage of the disciplinary process. The need for a full, proper and reasonable investigation is prevalent and will, as highlighted in this case, draw criticism if not undertaken coherently.
Additionally, the relevance of employers not making assumptions about an employee’s health , without reasonable investigation has also been highlighted by this case. The tribunal concluded that “The respondent made a gross assumption, without evidence, the claimant should not be at the Social Club because of the nature of his condition and because he should be shielding. In relation to the latter, the claimant did not have to shield, the notification to shield coming after the date of the allegation. Regarding the former, there is no evidence from which the respondents could conclude that the claimant had been advised not to leave his home”.
The Tribunal went on to state that there was also no rule which the Company could point to which states that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness. It’s a well know principle that just because employees are off sick, doesn’t mean they are not fit to undertake other activities or even go on holiday. The tribunal were also critical of the allegations put to Mr Kane in that they alleged he had been seen on ‘several occasions’ when the evidence only pointed to two occasions, one when he was seen and another which he admitted to during the process; highlighting the importance of properly constructed allegations being put to an employee for the purposes of disciplinary proceedings.
Whilst you could be forgiven for jumping to the conclusion that an employee who is seen BACK out on the booze whilst purporting to be too ill to work justifies gross misconduct, this case highlights the absolute necessity of carrying out thorough investigations and carry out a fair and reasonable disciplinary procedure before taking the decision to dismiss an employee. The tribunal pointed out that the ACAS code sets out a simple procedure and in order to have conducted this process correctly they should have; gathered all evidence from witnesses and the person who sent the photograph and made these available to Mr Kane; have someone else conduct the investigation and disciplinary stages with an independent person outside the organisation conducting the appeal; and if relying on the fact that Mr Kane should not have left his home obtained medical evidence to check the position. The Tribunal did however conclude that had the correct procedure been carried out as set out above, there was a 25% chance that he would have been dismissed in any event and ordered that any compensation be reduced by 25%.
Do you need advice on how to properly conduct a disciplinary procedure? Get in touch with one of our Employment Team on 01254 828300.
