The (misleading) revelation that “visiting the pub while on sick leave is not a sackable offence” has been doing the rounds of the press recently. The recent case of Kane v. Debmat Surfacing Limited ET/2501862/2020 is the cause of this bold statement, in which a Judge has ruled that an employee spotted in the pub whilst off work sick was unfairly dismissed.
The dismissal of an employee will be unfair unless:
In this case, the employer (R) is a business specialising in road resurfacing and the Claimant (C) is a driver. C suffers from Chronic Obstructive Pulmonary Disease (COPD) and has done for many years. As such, he has had various periods of sick leave in the past.
On 9th March 2019, the first day of a 3-week period of absence for ill-health, C was spotted in a pub by a colleague. Later that day, R’s Managing Director, who had been made aware of the pub visit, called C. During the call, C told the Managing Director that he had been in bed “all day with my chest”. C denied visiting the pub during the phone call but later admitted to visiting the pub for 15 minutes on the 9th and 30 minutes on the 10th.
C was invited to an investigation meeting which he was told was in relation to dishonesty and breaching company regulations. At the investigation meeting, the colleague who had allegedly seen C in the pub was present and asked C a number of questions.
This meeting was followed by a disciplinary hearing on 6th July where C was dismissed. C appealed and was unsuccessful, so he brought an Employment Tribunal claim.
As the headlines show, the Tribunal found in C’s favour, ruling that this was not a fair dismissal.
The Tribunal concluded that, whilst the employer may have had reasonable grounds to believe C was in the pub and therefore guilty of the misconduct, the focus here needed to be on the procedure R had used and what degree of investigation was carried out.
The Tribunal found there were a number of flaws in R’s investigation. Specifically:
It is important to remember that it doesn’t matter how culpable or blameworthy an employee’s conduct is, it doesn’t negate for the need for a fair process and to investigate the incident fully before deciding whether to dismiss. The process used should be able to withstand scrutiny if there is a claim is advanced by the employee.
Written evidence is essential – it’s important to keep accurate records of meetings and accounts provided by potential witnesses. To illustrate, the above incident occurred in March 2020 and the Tribunal didn’t hear the claim until June 2021. Considering the rule of best evidence, it’s important to take records of people’s accounts at the time when memories are fresh and clear.
Employers should be mindful that there are situations where an employee attending a social event whilst off sick may not actually be something that would delay their return or be seen as culpable behaviour. Indeed, in some situations, this social interaction could be very beneficial and aid recovery. This may be particularly the case when dealing with situations involving absences due to mental health.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Sophie Hay or Rachael Lloyd to discuss any issues you are facing.
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