Employee dismissed for drinking in pub whilst on sick leave wins unfair dismissal claim

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.

An overview of Unfair Dismissal

The dismissal of an employee will be unfair unless:

1. The employer can show that the principal reason for the dismissal was one of the five potentially fair reasons – capability, conduct, redundancy, statutory restriction, or some other substantial reason; and
2. The Tribunal finds that, in all the circumstances, including the employer’s size and administrative resources, the employer acted reasonably in dismissing the employee for that reason. The test for reasonableness can be divided into two parts:
   1. Did the employer follow a fair procedure?
   2. Was the decision to dismiss within the range of reasonable responses of a reasonable employer?

Kane v. Debmat Surfacing Limited

Facts

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 9^th 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 9^th and 30 minutes on the 10^th.

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 6^th July where C was dismissed. C appealed and was unsuccessful, so he brought an Employment Tribunal claim.

Findings

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:

• There was very little written evidence of the conversations and calls that took place, which led to misunderstandings and an unclear chronology of events.

• The Managing Director, who held the disciplinary hearing, was also the person who received the initial complaint. He was present during the investigation meeting and asked questions. The Judge recognised that, whilst it was a small business, there were two MDs and a reasonable employer would have found an independent person to hold the meeting.

• There was no rule to which R could refer, which said that one of their employees could not socialise “in whatever way they deem appropriate whilst absent from work through illness”.

• R made a number of assumptions about C’s condition, including that C should not be socialising in his condition and also that being in the pub would lead to C delaying his return to work; beliefs that were not supported by any medical evidence.

What can employers take from this?

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.