Tribunal Tale – Kane v Debmat Surfacing Ltd

The Claimant in this case was employed as a driver and had worked for the Respondent for eight years. The Claimant had had sickness absences in the past due to his COPD. One such period of absence was between 9 – 30 March 2020. On his first day of absence the Claimant was seen at a social club. After this the Respondent called the Claimant who claimed to have been in bed all day. He subsequently admitted being at the club on two occasions, both for under an hour.

The Claimant was informed that he was being investigated on 23 March for “dishonesty and breach of company regulations”. The Claimant didn’t think he had done anything wrong especially since he had only been there for a short period of time. The Respondent’s position was that if the Claimant was too unwell to be at work he should not have been at the social club. Additionally, the Claimant was supposed to be shielding due to his respiratory condition.

On 24 June the Claimant received a letter setting out that his behaviour breached the disciplinary policy. A disciplinary hearing was held on 6 July and the Claimant was dismissed.

The case was heard by the employment tribunal who ultimately decided the Claimant had been unfairly dismissed. A major part of this decision turned on the poor investigation the Respondent had carried out – no witness statements regarding the Claimant being seen at the social club were taken, the phone call was actually made on the Monday rather than on Tuesday as was claimed, he was only asked to shield after he had attended the club, the same member of staff heard the initial complaint and also led the disciplinary hearing, the person leading the hearing claimed to have a photograph of the Claimant drinking but this was never presented and it was never confirmed when was this taken or by whom, and there was a suggestion the Respondent was aware of other drivers doing the same whilst off sick.

Additionally, the judge stated that there was nothing in the disciplinary procedure that prohibited the Claimant from acting the way he did and also stated “There is no rule the Respondent can point to, which says that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness”.

The key take away in this case is the importance of carrying out a proper and balanced investigation. One can’t help feeling that the sight of the employee smoking and drinking while off sick was simply too much for the employer to bear here. But it has never been the case that an employee who is off sick has to be confined to bed at all times, and managers would do well to remember that.

If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.

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