Your staff member is off sick. Should they really be in the pub?

Submitted by Mark on 24th June 2021

Employment law, HR, Human Resources, Pub, beer, employees, disciplinary, investigation

You could hardly miss the big HR story of the month. Having been sacked for going to the pub while off sick, a man is due compensation from his former employer, with the dismissal being declared ‘unfair’. 

Colin Kane, 66, smokes and suffers from a serious lung condition. He works as a driver and had been employed by the firm since 2012. On March 9th, he phoned to say he was too ill to work and wouldn’t be coming in. 

However, that afternoon a colleague spotted him outside a social club, drinking alcohol and smoking. When challenged on the phone by his bosses, Colin claimed he’d been ‘in bed all day with his chest’. 

He was called to a disciplinary meeting and told, ‘Surely if you’d been unfit for work and on antibiotics, you shouldn’t be in the pub.’ His employer subsequently fired him for dishonesty and breaching the company’s rules.

‘a gross assumption without evidence’

The judge, Andrea Pitt, found that the sacking was unfair because the company’s rules didn’t specifically ban workers from socialising while off sick.  She declared that the employer, Debmat Surfacing, ‘made a gross assumption, without evidence, that the claimant should not be at the social club because of the nature of his condition.

What further counted against the company was that they claimed they had phoned Colin on the Tuesday rather than the Monday. This error was a ‘serious error’ in their investigation.

The case has attracted a deluge of media comment – not all of it accurate. Take the Metro headline 

Going to the pub while off sick is not a sackable offence, judge rules

This is not at all what the judge ruled. Kane was dismissed for misconduct in allegedly lying about where he had been and for signing himself off sick when he was believed to be fit for work.

Is enjoying yourself a sackable offence?

The key question is this – is being out and about (whether it’s at the pub is not the point) when you’re ‘off sick’ a sackable offence. How about with mental health cases? Employees off work with anxiety or depression might often be seen out, but this could easily be on Doctor’s advice. Do we know that Colin Kane hadn’t been advised by his GP to ‘get out in the fresh air’?

Going to the pub while off sick becomes an issue when it is directly inconsistent with the story given to the employer. 

Kane had said that he was off work due to obstructive pulmonary (lung) disease. You might think that this was inconsistent with him being seen outside the pub smoking. But - no one smokes believing it to be good for them. If Kane felt that he had to do so despite its health consequences, that was not inconsistent with his suffering from it, nor being too ill to work.

Preparation is all

So, why did Judge Pitt rule in favour of Colin Kane? As so often is the case, it was all down to careless preparation by the employer. Their argument fell down on two key points – 

1. Not making it clear in the company rules about what is deemed acceptable employee behaviour during periods of sickness.

2. Being inaccurate with the facts – specifically the day on which they’d contacted Colin Kane with their accusation.

Tribunals will expect you, the employer, to investigate carefully both the facts of the employee’s conduct and the medical position. If you make a possibly understandable, yet uninformed, assumption around what activities are consistent with your claimed medical grounds for absence, then you’re inviting trouble at the tribunal.

To clarify, the Employment Tribunal didn’t say that you can go to the pub when off sick. Provided it’s not inconsistent with their medical condition, physical or mental, then the employee can do whatever they wish during their time off sick.

So, the lesson is clear, before taking any action of this nature against an employee, however clear cut you believe your case to be, take advice from your HR specialist. More often than not, you’ll save money, time and your reputation.

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