Absent but in the pub. Controversial unfair dismissal ruling
A recent employment tribunal focused on unfair dismissal following an absent employee being seen out in the pub. However, it was the way that the investigation and disciplinary was handled that resulted in the finding, rather than the actions of the employee.
The employee, Kane, had health conditions including chronic obstructive pulmonary disease, and on the same day that he had phoned in sick, a manager was on his way back to the office when he claimed to see Kane smoking outside a social club.
Following a cursory investigation and a resulting disciplinary, it was decided that if the employee was so unwell not to be able to attend work, he should not be at the pub. The employee was dismissed for a breach of trust and dishonesty.
The disciplinary outcome letter set out the allegation that the employee was “attending the pub on numerous occasions, consuming alcohol and smoking while being signed off on sick with chronic lung disease/chest infection and claiming to be at home in bed”. The company found that this was a “serious and wilful breach of the company’s rules”, regarded it as gross misconduct, and summarily dismissed the employee.
The employee raised a claim and the employment tribunal found many flaws in the investigation and disciplinary procedure. The judge found there was actually ‘no investigation other than to speak to the claimant’ before disciplinary proceedings were commenced. No evidence was presented, no witness accounts were written down and testimonies had errors and inconsistencies.
In addition, there was nothing in the disciplinary procedure specifically prohibiting an employee from going to the pub when they were absent from work which resulted in the judge concluding that going to the pub while off ill did not constitute misconduct as there was no evidence that Kane had been medically advised not to leave his home.
This is undoubtedly a controversial ruling and acts as warning to employers. When citing sick leave policies in disciplinary situations, it is important to ensure that the policy contains comment on what is being alleged. When conducting investigations, make sure that the process is fair and balanced, and do not make assumptions that because someone is not well enough to attend work, they are not well enough to do any activity. If in doubt, seek advice and take time to consider all of the circumstances.