'Shouldn't be in pub' | Worker sacked for drinking in club while off sick was unfairly dismissed

Worker sacked for drinking in club while off sick was unfairly dismissed

A worker who was fired after he was spotted drinking in a social club while on sick leave has recently won his case at an employment tribunal.

According to experts, the judge’s decision, and the case, highlights the need for ‘robust disciplinary procedures', as well as a need to have ‘appropriate policies in place’.

The BBC reported that Colin Kane was fired by Debmat Surfacing in Ryton, Gateshead, after he was spotted smoking outside a bar in March last year.

Kane, who has chronic obstructive pulmonary disease was found not to have broken the firm’s rules, with Judge Andrea Pitt ruling that the worker had been unfairly dismissed.

How events unfolded

As was reported by the BBC, the tribunal heard that Kane was seen by Contracts Manager at Debmat Surfacing, Shaun Johnson, outside a social club near his place of work on 9th March last year.

Kane was said to have told his employers that he had been “bad in bed all day with his chest” via a phone call.

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Yet, the worker later denied being at that club on the day in question, despite admitting that he was there the next day.

‘Unfairly dismissed’.

Elsewhere, the tribunal heard that at a previous disciplinary hearing in March last year, it was stated that Kane had been spotted “several times” smoking and drinking at the club while he was off work.

He was reportedly told: "Surely if you had been unfit for work and on antibiotics, you shouldn't be in the pub."

The tribunal judgement said that he had been fired for a “breach of trust and dishonesty”.

Judge says ‘claimant was unfairly dismissed’

Judge Pitt said: "It was also put to the claimant he should not be in a public house because he was absent through ill health.

"There is nothing in the disciplinary procedure prohibiting an employee from acting in this way."

Elsewhere, the judge pointed towards “flaws” with the employer’s investigation, as well as adding that its disciplinary procedure was below “reasonable employer” standards.

Judge Pitt added: "The claimant was unfairly dismissed.

"There was a 25% chance of the claimant being dismissed if the respondent had conducted a fair procedure.

"The claimant did not contribute to his dismissal," the judge added.

The judge’s ruling may have follow-on implications for employers and HR as experts have laid out below.

‘The need for robust procedures'

One expert said that the case highlights the need for employers to have “robust disciplinary procedures”.

Kate Palmer, HR Advice and Consultancy Director of Peninsula UK, said: “…Dismissing an employee for breaching a rule which they were not aware of is risky when it comes to establishing a fair dismissal.

“The dismissal in this case was unfair for a combination of reasons, including an inadequate investigation which is another essential part of fairness; decisions should not be based on assumptions.”

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In addition to this, Palmer said that from a broader perspective, employers shouldn’t “jump to a conclusion that an employee is ‘pulling a sickie’ because they are seen socialising when on sick leave”.

The expert added: “The specific reason for the absence must be considered because, in some cases, GPs may advise that the employee undertakes activities during sickness absence.

“It is clear from this ruling that being too sick to work does not mean the employee must necessarily be confined to their house.”

‘Not binding on other employment tribunals’

Nathan Donaldson, Employment Solicitor at Keystone Law, added: “In this case, the judge ruled that the employer’s investigation into the employees behaviour was flawed, and the company’s rules did not ban staff from socialising while taking sick leave and so she upheld the claim of unfair dismissal. 

“In doing so the Judge commented that the employer had “made a gross assumption, without evidence, [that] the claimant should not be at the social club because of the nature of his condition”.

Yet, Donaldson went onto say that it’s important to appreciate that this “decision is an Employment Tribunal decision and as a first instance decision, is not binding on other Employment Tribunals. Only decisions of the Employment Appeals Tribunal and above are binding”.

“Nonetheless, the case highlights the need for employers to have appropriate policies in place and to conduct a reasonable disciplinary process if they are to fairly dismiss employees in such circumstances,” Donaldson concluded.

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