Last orders
Is going to a pub whilst on sick leave a guaranteed way of having your contract terminated?
A recent controversial Employment Tribunal decision has been viewed by some as an authority that you cannot be sacked for going to the pub while absent from work due to illness. But was a trip to the local ever a fair reason for dismissal?
The case concerned Colin Kane who was employed by Debmat Surfacing Ltd. Kane suffered from chronic obstructive pulmonary disease. As such, he was occasionally absent from work, including from 9 March 2020 to 30 March 2020.
On Monday 9 March, Kane was seen at a social club. Mr Turner, a Debmat director, was informed and called Kane. Kane did not answer this call, but phoned Mr Turner back and claimed that he had been in bed. A disciplinary meeting took place in July, with Mr Turner acting as the decision maker. The following day, a letter was sent to Kane confirming his dismissal. The reason given for Kane’s dismissal was gross misconduct, due to his serious and wilful breach of company rules. The incidents cited were (1) his visit to the social club while being off sick and (2) lying to Mr Turner about being in bed.
During the disciplinary hearing, Kane admitted that he had been at the pub during his first week off. However, as pointed out in the judgment, “there is no rule…which says that an employee cannot socialise in whatever way they deem appropriate while absent from work through illness”. Debmat conceded that Kane’s attendance at the social club was not itself gross misconduct. They instead argued that the misconduct stemmed from Kane acting contrary to his GP’s orders regarding his lung condition, as well as the general shielding rules. Despite this, Debmat provided no evidence to suggest that Kane had been advised by his GP not to leave his home. A notification to shield was sent to Kane, but only after the social club incidents. As such, Kane’s attendance at the social club did not constitute gross misconduct.
The other reason for the dismissal was Kane’s alleged lie to Mr Turner. The ET judge held that there was insufficient evidence to satisfy him that Kane had lied to Mr Turner.
Even if Kane had committed an act of misconduct sufficient to justify dismissal, Judge Pitt was not satisfied that the approach taken by Debmat was fair. Debmat failed to undertake a proper investigation before beginning the disciplinary process. The lack of written records led to confusion over the date of the phone call. Debmat also assumed that Kane had received advice from his GP and had been instructed to shield. Debmat had Mr Turner handle the disciplinary hearing, even though it was Mr Turner who Kane had allegedly lied to. For all these reasons, Kane’s dismissal was unfair.
Employers should note that there is no automatic finding of misconduct to be found where an employee has attended a pub while off work sick. If employers want to dissuade their employees from doing things such as this, it should be mentioned in their employee handbook. Secondly, employers should ensure that disciplinary processes are carried out with as much thought and care as possible. This judgment is an important reminder of the vigilant approach that must be taken to avoid successful unfair dismissal claims.
