Was an employee unfairly dismissed for going to the pub whilst off sick?

Generally speaking, employers expect that employees on sick leave will be genuinely unfit for work and will not abuse company sick leave and sick pay provisions. However, if an employee is genuinely unfit for work, does that mean that they are not allowed to be out socialising? In a recent case, an Employment Tribunal examined whether an employee had been unfairly dismissed after he was seen at a social club whilst off sick.

The events leading to dismissal

In Kane v Debmat Surfacing Limited, Mr Kane was absent from work due to ill health (caused by an ongoing lung condition) beginning from 9 March 2020. On the afternoon of 9 March, Mr Kane was seen at a social club by a colleague, who then informed the Managing Director, Mr Turner. Mr Turner spoke to Mr Kane by telephone and later claimed that Mr Kane told him ‘he had been bad in bed all day with his chest.’

In late March, Mr Kane was told he was being investigated for ‘dishonesty and breach of company regulations’ and an investigation meeting was held.

Mr Kane then received a letter stating concerns about him attending the social club whilst off sick and that ‘we would have to assume that your GP advised you to stay in the house as much as possible, especially due to the current Coronavirus outbreak’.

He was invited to a disciplinary meeting where Mr Turner was the decision maker. No witness statements were provided. It was alleged that Mr Kane had been seen on numerous occasions at the social club. Mr Kane accepted he had been there twice for short periods of time. Mr Turner said he had a photograph of Mr Kane drinking outside of the club, but this was not shown to Mr Kane, nor was Mr Turner able to give a date of when it was taken, or by whom. Mr Turner brought up the phone call between him and Mr Kane but stated this took place on Tuesday 10 March.

Mr Kane was dismissed for gross misconduct. He appealed against his dismissal because he had been told that the telephone call was on the Tuesday, when in fact it was Monday, and because he was aware of other people going to the club whilst they were ill. He said that although the employer had knowledge of this, nothing was done. The appeal was dismissed.

The decision

The Employment Tribunal concluded that the investigation was not one which a reasonable employer would have undertaken, and that a fair disciplinary procedure was not followed. Written accounts were not taken from the potential witnesses, enquiries were not made into the photograph, and the employer had made allegations of ‘numerous occasions’ when Mr Kane was seen at the Social Club, although their evidence only covered one occasion. Additionally, there was an obvious error in relation to the date it was alleged that Mr Turner telephoned Mr Kane.

Furthermore, there was nothing in the disciplinary procedure prohibiting an employee from attending a pub whilst absent from work through ill health. The employer had alleged that Mr Kane was acting against his GP’s orders and also the general rules in force at the time in relation to shielding. These assumptions were not adequately investigated or tested; the employer had no medical evidence that Mr Kane had been told not to attend the social club because of his condition and an NHS letter advising him to shield was not sent until after 9 March.

It was inappropriate for Mr Turner to deal with the disciplinary hearing given that he was the person who took the initial complaint and one of the allegations was that Mr Kane had lied to him. The Employment Tribunal also concluded that the employer was aware of a previous employee’s attendance at the social club whilst off sick and that no action had been taken at the time, which supported Mr Kane’s argument of inconsistent treatment. In all of the circumstances, the dismissal was unfair.

Conclusion

It is important to remember that as this decision is Employment Tribunal level only, it is not binding on other Tribunals and is based on its specific facts. That Mr Kane was found to have been unfairly dismissed is not really a surprise, given the failings in the investigation and disciplinary process. Depending on the medical issue, socialising can help employees to recover from sickness and so it is important not to react too quickly in situations like this. That said, this judgment does not mean that any employee off sick has a free pass to go to the pub! Employers should ensure that proper procedures are followed in relation to disciplinary matters, and our team can help you to ensure that you minimise the risk of claims.