Man spotted in pub during sick leave was unfairly dismissed

Library photo: Nejron Photo/Shutterstock

A man dismissed from his job after being spotted drinking and smoking in a social club while on sick leave was unfairly dismissed, an employment tribunal has found.

Colin Kane, 66, worked as a driver for a surfacing company, Debmat, in Ryton, Newcastle upon Tyne. The company employs about 150 people and does not have a dedicated HR department.

Kane had suffered from chronic obstructive pulmonary disease (COPD) for several years and had periods of absence due to ill-health.

On the first day of a three-week period of absence, on 9 March 2020, Kane was spotted by a colleague at a social club close to Debmat’s base. On seeing one of his employer’s vehicles, Kane is said to have stepped back into the building as if to avoid being seen.

Managing director John Turner later phoned Kane, after hearing about the social club visit, and told the tribunal that Kane had said he had been in bed “all day with my chest”. Turner mistakenly  later referred to this phone call having taken place on the Tuesday when it had actually occurred on the Monday 9 March.

Kane later admitted to being at the club for 15 minutes on one day and 30 minutes on another.

On 23 March he was informed that Debmat was investigating him for “dishonesty and breach of company regulations”. He was told: “Surely if you had been unfit for work and on antibiotics, you shouldn’t be in the pub.”

Kane responded he had only been there for a short period, and he saw nothing wrong with that. A director of the company told him, “I am not comfortable that you think it is OK to go to the pub when not fit for work.”

The Covid-19 outbreak added a further element to the accusations, with the company reminding Kane that he should have been self-isolating because of his vulnerability.

Debmat sent Mr Kane a letter on 24 June explaining that it saw the employee’s behaviour as breaching the company’s disciplinary rules. The tribunal noted that no witness statements supporting evidence of Kane’s presence at the club were included in the letter.

After a disciplinary meeting on 6 July Kane was dismissed from his post, but quickly appealed claiming that other employees had visited the club while absent from work through sickness. The appeal was rejected by the company.

The employment tribunal, however, found that Debmat’s investigation of the allegations against Mr Kane was flawed. Employment Judge Pitt pointed out there was no rule the respondent could point to, which stated that an employee could not socialise “in whatever way they deem appropriate whilst absent from work through illness”. The judge added there was no exact medical evidence provided that supported the view that Kane should be subjected to disciplinary action for attending the club.

Judge Pitt wrote in his conclusions: “I note the disciplinary procedure does not contain any clause regarding ill health, nor was there any evidence upon which they could rely, which suggested the claimant’s illness was harmed by this behaviour or his return to work delayed.”

Furthermore, no written accounts were taken, which led to confusion over dates and times – as seen from the dispute over the phone call.

The tribunal, which took place on 11 February, but was not published until late May, found the investigation flawed on other counts too: as the person who took the initial complaint, Mr Turner should not have led the disciplinary meeting. He also noted among other failings that it appeared the company may well have been aware that other employees in the past had visited the club when officially ill and had not taken action.

Judge Pitt concluded: “The claimant was unfairly dismissed. There was a 25% chance of the claimant being dismissed if the respondent had conducted a fair procedure. The claimant did not contribute to his dismissal.”

Daniel Stander, an employment lawyer at Vedder Price, said: “Whilst it will generally be regarded as misconduct for an employee to abuse sick leave (and sick pay) when not genuinely unfit for work, this does not excuse employers from acting reasonably in all the circumstances.

“Even if employers hold a genuine belief that the employee is guilty of misconduct, that belief must be based on reasonable grounds, and they will still be expected to carry out as much investigation into the matter as is reasonable, seeking to establish all the facts before arriving at the decision to dismiss.”

King & Spalding employment partner Jules Quinn commented: “While this a curious and somewhat amusing case, certainly for people worried about getting sacked for going down the pub while off sick, it is a reminder that there are wider issues that employers should be addressing regarding sick leave policies. Many employers have seen a significant drop in sickness rates during the Covid-19 pandemic, for instance, with the establishment of flexible working policies are a key factor. That old-school, heavy-handed approach to a “sickie” is just not suitable.

“Anecdotally, at least, it could be that working from home becomes a tool to minimalise sick leave but the issue goes much broader. Employers should be going over their existing sick leave policies in detail to update them so they can function in a the new, more fluid, work environment. Some employers have often taken a cynical approach to sick leave but, if the last 15 months has taught us anything, our physical, mental and emotional wellbeing should be top of our agenda. Employers need to strike the balance between corporate needs and supporting employees facing difficult challenges as well as establishing innovative alternatives to outdated policies.”

Debmat Surfacing declined to comment.

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