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Aug 03

Fair or Unfair? Sacked for being in the Pub when off sick.

As an HR Consultant I come across many situations where employers want (or need) to take action to deal with employees who do something wrong.  It happens.

This is a case where an employer felt the employee had done something wrong so dismissed him believing the reasons for the dismissal were ‘right’.  The Tribunal disagreed and found that the employee had, in fact, dismissed the employee unfairly.

This a recent judgement (February 2021).
So what happened?

Mr Kane was employed as a driver for Debmat Surfacing.  He had been employed for nearly 8 years when he was dismissed from his employment at the age of 65. The employer was a small business employing less than 160 people.  They undertook surfacing of roads, car parks and drives and they did not have a dedicated HR resource.

Mr Kane suffered with a serious medical condition (COPD) and had done for several years.  This medical condition meant that he had periods of sickness absence.  One of these absences was in March 2020 and lasted approximately three weeks.  At the start of this period of absence Mr Kane was seen at a Social Club close to his workplace by one of his managers and this was reported back to a Joint Managing Director who then rang Mr Kane.  Mr Kane told his MD that he had been ill in bed all day.

We can all remember what happened in March 2020.  Many people with serious medical conditions were told to ‘shield’ as a result of the Covid-19 pandemic and Mr Kane was one of these people.

An Investigation was trigged by a fellow Joint Managing Director of the Company and Mr Kane was notified that he was under investigation for ‘dishonesty’ and breach of company regulations.  Present at the investigation meeting was the joint MD and the original manager who had seen Mr Kane at the Social Club.  During questioning the MD told Mr Kane he was ‘not comfortable that he thought it was ok to go to the pub when he was not fit for work’.  There were other comments made during the investigation meeting which questioned why Mr Kane was in the pub ‘when she shouldn’t be, due to his illness’.

There then followed a disciplinary meeting in July (after the ‘shielding’ period).  The allegation was ‘dishonesty and breach of company regulations’.  Mr Kane was not provided with any evidence, no photos, witness statements or any investigation report to accompany the letter advising him of the disciplinary hearing.  The allegations were that he had been seen in the pub on ‘numerous occasions’ despite Mr Kane admitting it had been only two occasions of up to 30 minutes.

The disciplinary hearing was conducted by the Joint Managing Director who had initially phoned Mr Kane on hearing of the siting of him in the Social Club.  Mr Kane was told there was a photo of him and was also reminded that he had told his MD that he had been in bed ill all day.  Mr Kane confirmed he could not remember the exact dates that the incidents were relating to.  There was a short break in the meeting, after which Mr Kane was told he was dismissed for breach of trust and dishonesty.

The disciplinary outcome letter referred to ‘numerous occasions being in the pub, smoking and drinking when off sick.  There had also been references to Mr Kane’s medical condition using terms like ‘surely you shouldn’t be in the pub if you are on antibiotics’.  The letter referred to assumptions about what Mr Kane would have been advised to do/not do by his GP and refers to his actions being ‘inappropriate for somebody with his diagnosis’.

Mr Kane appealed against the decision to dismiss him on two grounds:

  1. He had been told the telephone call was on the Tuesday when in fact it was on the Monday
  2. He was aware that other colleagues had been to the Club when signed off sick but had not been dismissed and one of the managers involved in the investigation knew this

Mr Kane lost his appeal and the dismissal was upheld.

Mr Kane took his employers to an Employment Tribunal claiming Unfair Dismissal pursuant to Section 98 of the Employment Rights Act 1996.

He won his case, and his employers were found to have unfairly dismissed him, so

HOW AND WHY?

CONCLUSIONS and LEARNING POINTS

  • When there are allegations of misconduct, a record of the allegations should be kept and documented correctly accompanied by relevant evidence. That evidence should be checked and validated. Document, document, document – write things down and keep records.  Talk to as many people as you need to in order to gather correct and demonstrable facts.  

In this case, there were no witness statements and there was a reference to a photo which was shown to Mr Kane with no explanation of how the photo was obtained or where it came from.  It was claimed that the photo was relevant, but it was not produced as evidence at the Tribunal Hearing.  There simply was NO investigation done, just a load of questions fired at the employee.

  • Investigations are key … They must be thorough, and all evidence collected, recorded and provided to the employee prior to a disciplinary hearing. The investigation in this case was poor verging on non-existent.  Investigating managers should play NO part in the disciplinary decision process.  Always keep investigations separate from the disciplinary process and don’t be tempted to play a part in both.  Don’t be the judge, the jury and the executioner!!

There was a reference to ‘numerous occasions of sickness’ but no evidence of when these were.  There was also a serious error in the dates that the alleged phone call was made from the Managing Director to Mr Kane and this was found to be an error at the appeal stage but ignored. The manager who saw Mr Kane also asked questions at the investigation meeting.  He should have been the witness, not the investigator.

  • The employers made a judgement that Mr Kane should not have been in a public house because he was absent through ill health , but the disciplinary procedure did not state that such a prohibition existed.

In the absence of a policy saying otherwise, Mr Kane had done nothing wrong in going  to the pub when he was signed off sick.  He had also been told that he was acting against his GP’s orders and the general rules at the time for ‘shielding’.  These were all found to be assumptions that were not adequately investigated or tested.  Further enquiries should have been undertaken.

  • The dates of the phone calls that related to the allegation of where Mr Kane was were inaccurate. This was a serious error.

Evidence must be accurate and dates must be accurate.  Mr Kane was dismissed for something that had allegedly done but not on the date it was alleged to have happened.

  • The exact nature of the misconduct was not clear nor was the actual reason for the dismissal.

The outcome letter did not clearly state why Mr Kane had been dismissed.  It talked about attending Social Club premises on numerous occasions, consuming alcohol and smoking whilst being off sick when he was claiming to be at home ill in bed.  It had been proven that Mr Kane had not lied as the dates had been incorrectly noted and there was no company rule that said employees could not go to a pub, consume alcohol or smoke even if off sick.  It had also been proven that the notification from the NHS to ‘shield’ had come after the date of the allegation.

All in all, this case falls down in many ways but the most critical learning to take from this is the NEED to THOROUGHLY INVESTIGATE, especially where the allegations are potentially such that they would be deemed as gross misconduct therefore leading to a dismissal.

To read the full judgement on this case click here

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