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Kerry Eastman

HR Advisor - Uckfield

5th July 2021

Employee unfairly dismissed after being spotted in a social club on sick leave

Case Study: Employee unfairly dismissed after being spotted in a social club on sick leave

Background:

Colin Kane, a Driver for Debmat, a surfacing company in Newcastle upon Tyne, had been suffering from chronic obstructive pulmonary disease (COPD) for several years and had a significant sickness absence record. On Monday, 9 March 2020, the first day of a three-week period of sickness absence, Mr Kane was seen by a colleague outside a social club local to Debmat’s base. Upon recognising his colleague’s company vehicle, it was said that Kane stepped back into the social club, so as to avoid being seen. After being made aware of Mr Kane’s presence at the social club, John Turner, Debmat’s Managing Director, contacted him only to be told by Mr Kane that he had been in bed all day due to ill-health. Mr Kane was later informed by Debmat that he was being investigated for dishonesty and a breach of company regulations. He was advised that if he was unfit for work and on antibiotics, he shouldn’t have been in the “pub”. Mr Kane asserted that he had only been to the social club for a short period of time and that he did not see an issue with his attendance at the social club during sick leave. In contrast, Debmat asserted that they were not comfortable Mr Kane thought it was ok to go to the “pub” when not fit for work.

On 24 June 2020, more than three months after the primary incident, Mr Kane received a letter asserting that his behaviour constituted a breach of the company’s disciplinary rules and inviting him to a disciplinary hearing. The hearing was held on 6 July 2020 and, following the hearing, Mr Kane was dismissed for gross misconduct. Quickly appealing, Mr Kane explained that other employees had visited the social club while absent from work through illness. His appeal was later rejected. Mr Kane then brought a claim in the Employment Tribunal for unfair dismissal.

Decision:

Employee unfairly dismissed after being spotted in a social club on sick leave

Despite Debmat’s assertions that Mr Kane’s behaviour breached its disciplinary rules, the Tribunal found that there was no rule which stated an employee could not socialise in whatever way they deemed appropriate while absent from work through illness. Further, Debmat failed to follow a reasonable process. Mr Turner was allowed to lead the investigatory stages as well as the disciplinary hearing and Debmat failed to obtain appropriate witness evidence in a timely manner.

The Tribunal therefore concluded that Mr Kane had been unfairly dismissed.

What does this mean in practice?

Employers should be cautious when handling disciplinary procedures, particularly where they believe something may amount to gross misconduct. They must ensure their disciplinary process is ACAS compliant and that separate individuals are appointed to handle each distinct stage of that process. Further, while it could be regarded as misconduct for an employee to abuse sickness leave, it is also important to note that, while an employee may be unfit for work, that does not mean they are unfit to socialise or engage in other therapeutic activities.

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