Judge rules staff “off sick” can visit pubs

Mr Kane was employed by Debmat Surfacing Limited 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. He was later seen drinking and smoking at a social club close to the workplace by a colleague. Mr Kane denied being at the club on 9 March 2020, although he accepted, when questioned by the company, that he was there 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 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. The company did not take statements from any potential witnesses, which led to confusion over dates, and did not make any enquiries as to the origins or source of the photographic evidence received. The tribunal found that the company had undertaken no investigation whatsoever, other than to speak to Mr Kane before commencing the 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. This 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 important 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 is a well-known principle that just because employees are off sick does not mean that that they are not fit to undertake any 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 where he was seen by colleagues and one to which he admitted during the disciplinary 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 a fair and reasonable disciplinary procedure before taking the decision to dismiss an employee. The tribunal pointed out that the ACAS Code of Practice on Disciplinary and Grievance Procedures sets out a simple procedure and in order to have conducted this process correctly the employer 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 obtained medical evidence to check the position of Mr Kane to see if was instructed by doctors not to leave his home.

The tribunal concluded, however, that had the correct procedure been carried out then there was a 25% chance that Mr Kane would have been dismissed in any event and ordered that any compensation be reduced by 25%.

This case illustrates the absolute necessity of conducting a fair and full investigation in line with the ACAS Code of Practice and the need to ensure managerial staff responsible for conducting disciplinary procedures are fully trained and competent. Cutting corners within investigation and disciplinary procedures can have a devastating effect on the fairness of any subsequent dismissal and may result in a finding by an employment tribunal that any dismissal is procedurally and potentially substantively unfair.

For advice and assistance in respect of conducting investigations and disciplinary procedures in line with legal requirements or regarding training your staff on conducting such procedures, please get in touch with Sarah Collier, Partner & Head of Employment to arrange a meeting.