You may have seen the headline last week “visiting pub whilst off sick is not a sackable offence”.
The case involved an employee who won his employment tribunal claim for unfair dismissal following his dismissal for drinking in a social club, whilst he was signed off sick.
However, the reporting of the case did not go into detail and, as such, the headline was, we believe, somewhat misleading.
Indeed, whilst the case in question is not binding on other tribunals (it is only a decision of the Employment Tribunal and not higher), it is worth commenting on as there are a number of key points we can take away from it.
Brief facts of the case
At the time of his dismissal, Mr Kane was 65 and had 7 years’ service working as a driver for Debmat Surfacing Ltd. He suffered from chronic pulmonary disease.
Mr Kane was off work on sick leave between 9 and 23 March 2020. On 21 March, he received a letter from the NHS advising him to shield.
Mr Kane was seen on 9 March 2020, the first day of his sickness, at a social club close to his workplace, by a director of the company. As a coincidence, the director was following a Debmat vehicle at the time.
The director telephoned Mr Kane the same day. Mr Kane phoned him back and it is alleged that he said that he had “been bad in bed all day with his chest”.
During the disciplinary hearing, Mr Kane denied being in the club on that day but said he had been there the following day.
Mr Kane was dismissed for:
- “attending the pub on numerous occasions, consuming alcohol and smoking whilst being signed off sick with chronic lung disease/chest infection and claiming to be home in bed”; and
- Being found guilty of a serious and wilful breach of the company’s rules.
Employment Tribunal Decision
Due mainly to major procedural flaws, the company did not meet the tests to demonstrate there was a fair dismissal.
The Employment Judge was scathing about the processes followed (or lack of) by the company, in particular:
(a) The disciplining officer was also a witness and he was involved with the investigation meeting;
(b) There was no proper investigation and no witness statements were taken. For example, the driver of the Debmat van was identifiable but was not approached as part of the investigation;
(c) During the disciplinary meeting a photograph was shown to Mr Kane but this was not provided to him prior to or after the disciplinary meeting, and its origin was never identified;
(d) The company had made assumptions about Mr Kane’s health, including the nature of his underlying health condition, the reason for his absence and the need to shield, without making any further enquiries;
(e) The company had sought to rely on the advice to shield as saying that he should not have been in the club, despite the incident occurring on 9 March and the shielding letter not being sent until 21 March;
(f) The company had relied on the fact that, in their mind, any action by an employee whilst they are ill, which delays their return to work was misconduct. However, there was no reference to this type of behaviour within the company’s disciplinary procedure or rules;
(g) The disciplinary procedure was flawed;
(h) A former employee had done the same thing, without any disciplinary action being taken; and
(i) The appeal fell short of what might be expected from a reasonable employer.
In light of the above, Mr Kane was successful with his claim.
Any compensation awarded to him will, however, be reduced by 25% on the basis that had a fair process been followed, there was a 25% chance that he would have been dismissed. The company simply didn’t produce sufficient evidence that Mr Kane had committed misconduct or gross misconduct.
Key points to take away from this case
- The importance of undertaking a fair investigation, disciplinary procedure and appeal
The company did not follow the Acas Code of Practice on Disciplinary and Grievance Procedures which sets out the basics when dealing with a disciplinary matter as follows:
(a) Dealing with issues promptly and without unreasonable delay;
(b) Acting consistently;
(c) Undertaking a thorough investigation: interviewing the employee under suspicion and any witnesses and gathering any other relevant evidence i.e. documents, photographs, CCTV etc. to establish the facts of the case;
(d) Informing employees of the basis of the problem, providing copies of the evidence and witness statements collated (and any investigation report) and the potential outcome. An employee should be given at least 48 hours’ notice of a disciplinary hearing, but this may be longer depending on the number of allegations and evidence collated;
(e) Having different managers carrying out the investigation, disciplinary hearing and appeal hearing. Where necessary, depending on the resources of the company, consider bringing in a third party to undertake an element in the process;
(f) Allowing employees to be accompanied at any formal disciplinary hearing and appeal by a trade union representative or work colleague;
(g) Giving employees an opportunity to put their case in response, ask questions, present evidence and call any relevant witnesses before any decisions are made;
(h) Confirming the outcome in writing following the disciplinary hearing; and
(i) Allowing employees to appeal against any formal decision made.
If witness statements had been taken from all those who could have witnessed Mr Kane in the club on the 9 March, a dismissal for dishonesty (the fact that Mr Kane was not genuinely sick and that he lied to a director about being in bed) is more likely to have been successful, if a fair process was also followed.
- Employees’ activities whilst on sick leave
Employers frequently seek advice about an employee’s activities whilst they are on sick leave, from posting what they are doing on social media to working for others (or themselves).
Many of these concerns are raised by colleagues believing that an employee is “taking the mick” and not genuinely sick. Having in place a clear sickness absence procedure and the contractual ability to seek your own medical evidence can deal with these situations.
The reason for an employee’s sick leave together with the role undertaken for the employer is relevant, but these are the common situations we find:
(a) Employers should avoid making quick judgments based on reports that a sick employee has gone on holiday, has been seen playing sport or otherwise enjoying themselves whilst on sick leave from work.
There is no legal requirement that a worker who is signed off sick must stay at home. In many cases, particularly those involving stress-related illnesses and/or depression, it might be medically advisable for a worker to try to undertake activities that will promote their return to good health and work, which are likely to include sport, leisure activities or holidays.
In any case, the fact that an employee is able, on occasion, to go out and enjoy themselves should not, of itself, be seen as evidence that they are fit for work or have been acting dishonestly. That said, it will depend on the situation, for example, if an employee is off work with a sickness bug, they should not be out and about and around other people.
(b) It will usually amount to misconduct or gross misconduct for an employee to dishonestly take sick leave when not genuinely unfit for work.
This has to be properly investigated by way of a medical examination by occupational health or a doctor.
If the employee is not fully fit the report may suggest ways of rehabilitating the employee into the workplace. However, if there is evidence the employee is not genuinely sick or is deliberately exaggerating the extent of their incapacity, this should be dealt with as a case of misconduct or gross misconduct, depending on the severity.
Be aware that relying on social media posts, particularly provided by other employees, may have data protection implications.
(c) It may be misconduct or gross misconduct for an employee to work elsewhere or for themself whilst on sick leave, depending on the work undertaken.
This is especially serious if the work is being done during the hours that the employee would otherwise have been working for the employer. Even if that is not the case, the fact that the employee is able to work elsewhere may suggest that they are not genuinely unfit for work.
The more evidence you can gather in this respect the better.
(d) Is there are pattern of absence i.e. absence on Fridays or Mondays? If so, this may be a disciplinary matter for short term persistent absence.
(e) Where it is not a disciplinary offence i.e. an employer cannot find any dishonesty, it could be dealt with as a capability matter.
- Contents of disciplinary policies and rules
The point made by the Judge that there was no reference to activities during sick leave within the company’s disciplinary procedures is, we believe, slightly misleading.
Employers are unlikely to be able to include within their disciplinary procedures or rules all possible examples of misconduct or gross misconduct. That is why the lists should be stated as examples and non-conclusive lists.
Some employers may want to include reference to this in their sickness absence procedures or disciplinary procedures and rules, particularly if this is common problem.
Where it is not specifically listed, an employer is still able to state that they believe it is serious enough to warrant misconduct or gross misconduct. Employers should, however, avoid saying that it is a breach of a specific rule, if no such written rule can be pointed to.
- Seeking advice at an early stage
In this case, neither of the parties were legally represented. For employers, it is advisable to take legal advice at an early stage, particularly where it is likely to result in an employee’s dismissal. Some costs being incurred at the time are likely to be significantly outweighed by any compensation payable, if you get the process wrong.