POSTED: June 15 2021
Man who visited the pub while sick wins tribunal

Man dismissed for going to the pub during sick leave wins tribunal

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.

While it would generally be regarded as misconduct for an employee to abuse sick leave when not genuinely unfit for work, this does not excuse employers from acting reasonably in all circumstances, as Debmat, a company in Newcastle upon Tyne recently found.

Colin Kane, 66, worked as a driver for a surfacing company, Debmat, in Ryton, Newcastle upon Tyne. 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 due to sickness, Kane was spotted at a local social club.

Managing director John Turner later phone Kane after hearing about the social club visit. During the call, Turner told the tribunal, Kane alleged he had been in bed all day with his chest. Critically, Turner failed to keep a record of this phone call, and referred to this phone call having taken place on the Tuesday, when it had actually occurred on the Monday 9 March.

On 23 March, Kane was informed that he was under investigation “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 the admitted he had been in the social club, but only for a short time, 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. He 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”.

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.”

“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.”

Jessica Hall, HR Consultant at advo says:

“This case highlights the importance of ensuring an employer acts reasonably at all stages of a disciplinary case. In this situation, the investigation was flawed for several reasons. This included incorrect dates given to the claimant and allegations that were not specific enough.

 

Another flaw in the process was having the manager who received the initial complaint leading the disciplinary meeting. The Judge explained that there were others in the business who could have stepped in to avoid the manager who had been involved making the decision at the disciplinary hearing.

 

For those in smaller businesses it may not always be possible to have someone impartial involved in the process, and in the case of Debmat, the company had no dedicated HR department at all. For businesses in a similar situation to Debmat, it may be beneficial to instruct a third party to undertake part of the process. This will help to ensure objectivity, and to address any procedural failings that could be rectified during the process. advo hr are able to support this type of investigation and disciplinaries so employers can ensure fair process is followed.

 

Responses also need to be reasonable. In this case the employer assumed without any evidence that his health condition meant he should not be socialising. There was no evidence to state that the employee was advised not to leave the house. Debmat made decisions based on their assumptions rather than investigating the matter to see whether their assumptions were correct.”

While this is indeed a curious case, it serves as a reminder that the old-school, heavy-handed approach to a ‘sickie’ is no longer suitable in 2021, and third party expert help can be invaluable to small and medium businesses. Contact us today to start a conversation with our hr experts.

Original article here.