Employment Law Case Update: Unfair Dismissal and Sick Leave

Managing your employees while they are on sick leave can be tricky; ensuring the right level of contact to make them feel they are still part of the organisation while not being checked up on.  How should employers act however if an employee on sick leave is spotted taking part in an activity that are incompatible with the employee's illness?  Our Employment Law team here reviews the case of Mr C Kane v Debmat Surfacing Limited 2021, where an employee was spotted in a pub while on sick leave.

Mr Kane worked as a driver for the company from September 2012 until his dismissal in July 2020. He suffers from chronic obstructive pulmonary disease (COPD) and was off sick from work from 9 March 2020 to 20 March 2020. On the first day of his sick leave, a co-worker claimed to have seen Mr Kane at a social club. The co-worker informed Mr Turner, one of the managing directors, who then phoned Mr Kane. The Employment Tribunal (ET) heard that Mr Kane told Mr Turner he “had been bad in bed all day with his chest.” Mr Kane denies he was at the pub on 9 March but admits he was there the following day.

The company then began a disciplinary investigation into Mr Kane. It was alleged that Mr Kane had been seen several times drinking and smoking in the pub and that surely this was against his GP’s advice considering Mr Kane’s health condition. Mr Kane replied that he had only been in the pub for a bit and didn’t see anything wrong with that.

Mr Kane was invited to a disciplinary hearing to be held in early July and he was not provided with a witness statement or photographs prior to the meeting. Mr Turner conducted the hearing and showed Mr Kane a photo he had of Mr Kane drinking outside the club, not telling Mr Kane when or by whom the photo had been taken.

Mr Kane admitted that he had been at the club for fifteen minutes on one occasion and thirty minutes on another. When Mr Turner put to him that someone who is too sick to work should not be “out on the drink” Mr Kane said he saw Mr Turner’s point of view. Mr Turner subsequently decided Mr Kane would be dismissed for a “breach of trust and dishonesty”.

Mr Kane appealed his dismissal, claiming that the company had been inconsistent in its treatment as he knew of other employees whom the company had failed to take action against who had also gone to the pub whilst off sick. The appeal was dismissed, so Mr Kane brought a claim in the ET for unfair dismissal.

The ET found that Mr Kane had been unfairly dismissed. The company had failed to carry out a proper investigation and the disciplinary procedure “fell below the standard expected from a reasonable employer”. The company failed to properly gather and record evidence from witnesses and did not make the necessary enquiries into the photograph showing Mr Kane at the club. The company also assumed, without evidence or investigation, that Mr Kane was acting against his GP’s orders by visiting the club. Further, Judge Pitt was critical that the nature of the alleged misconduct was unclear, stating “There is no rule the [company] can point to, which says that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness.”.

The ET also said that Mr Turner, who took the initial complaint and who Mr Kane was accused of lying to, should not have been the one to lead the disciplinary hearing and make the final decision to dismiss. A reasonable employer would have appointed an independent person to run the hearing and make the decision.

The ET was satisfied that had a fair procedure been carried out, there was a 25% chance that Mr Kane would have been dismissed.

This case highlights the importance of conducting a thorough investigation and following a proper disciplinary procedure. When an employee is alleged to have committed an act of misconduct, all relevant evidence should be properly gathered and recorded by an independent party, and the employee should be provided with copies so that they have an opportunity to provide an explanation. The disciplinary hearing should be conducted by another independent party who is not a witness or party to the alleged misconduct.

Employers should also be clear on the types of activities which may constitute misconduct, and may wish to specify in their disciplinary policy that participating in activities incompatible with the reason for sickness absence will be treated as misconduct.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.