Driver Dismissed For Drinking In Social Club Whilst Off Work Sick Wins Employment Tribunal Claim

An Employment Tribunal (ET) has ruled that a driver, who was dismissed by his employer after he was seen drinking and smoking in a social club whilst off work sick, was unfairly dismissed.

Mr C Kane v Debmat Surfacing Ltd: 2501862/2020

Case background

The Claimant, Mr Colin Kane, worked as a driver for Debmat Surfacing Ltd (the Respondent), a surfacing company based in Ryton, Newcastle upon Tyne.

Before his dismissal, Mr Kane had suffered from chronic obstructive pulmonary disease (COPD) for several years and had been off work sick on various occasions as a result of ill-health.

On 9^th March, the Claimant was spotted by a fellow employee outside a social club on his first day of a three-week period of absence due to ill-health. It was alleged that when Mr Kane saw one of his employer’s vehicles outside of the club, he immediately stepped back into the building, so as not to be seen.

Later, the Respondent’s Managing Director, John Turner, who had been made aware of the social club visit, called the Claimant, who informed Mr Turner that he had been in bed “all day with my chest”. However, when referring to the phone call during the ET proceedings, Mr Turner mistakenly later referred to it as having taken place on the Tuesday (10^th) when it had, in fact, occurred on the Monday (9^th).

Mr Kane denied visiting the club during the phone call. However, the following day, he admitted to visiting the club for 15 minutes on one day and 30 minutes on another.

Later that same month, the Respondent began an investigation into the Claimant’s conduct alleging “dishonesty and breach of company regulations” and the Claimant was informed of this. During a disciplinary hearing, the Respondent alleged that the Claimant had been seen “several times” drinking and smoking at the club while he was off work sick. The Claimant alleged that the Respondent said:

The Claimant’s explanation was that he had only attended the club for a short period, and he didn’t think that there were any issues with him doing this. A Director of the Respondent commented:

Additionally, the Respondent suggested to the Claimant that due to the Covid-19 pandemic that he should have been self-isolating at home due to his vulnerability.

Following the hearing, the Claimant received a letter from the Respondent stating that they felt his actions breached their disciplinary rules. The letter did not include any witness statements confirming the Claimant’s presence at the club.

The Claimant was dismissed from his role for a “breach of trust and dishonesty” in July but immediately appealed the decision. Within his appeal, the Claimant claimed that some of his fellow colleagues had visited the club whilst they were absent from work through illness. However, his appeal was rejected by the Respondent.

Mr Kane brought an unfair dismissal claim against his former employer.

ET decision

The ET ruled in favour of the Claimant, with Employment Judge Pitt noting “flaws” in the Respondent’s investigation and that their disciplinary procedure fell short of the standard of a “reasonable employer“.

The Judge commented that there was no rule which the Respondent could refer to, which said that one of their employees could not socialise “in whatever way they deem appropriate whilst absent from work through illness”. Additionally, there was no medical evidence provided which reinforced the opinion that the Claimant should be subjected to disciplinary proceedings for socialising whilst absent from work through sickness.

In his conclusions, Judge Pitt wrote:

And:

Comment

It will not automatically be the case that an employer should expect an employee who is off work sick should be at home convalescing for any period of sickness absence. Depending on the nature of the employee’s condition and in the absence of any policy or disciplinary rule to the contrary, an employer will not be able to fairly discipline an employee for socialising whilst off sick, unless this provides evidence that their illness was not genuine or their behaviour risks aggravating their condition.

We would advise all employers to make sure they have clear policies on sickness absence which set out the expectations for employees who are absent because they are unwell.

Employers who are considering taking disciplinary action against employees for their behaviour whilst they are signed off sick, will need to investigate thoroughly and, if appropriate, take medical advice to inform any decisions.