Employee’s dismissal for drinking at a club when off sick is unfair
- Date: Tuesday 29th June 2021
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An employee who was dismissed after he was seen drinking at a social club whilst off sick has won his tribunal case for unfair dismissal.
In the case, the employee Mr Kane was seen by a senior manager smoking outside of a social club near to his place of work at Debmat Surfacing. Mr Kane, who suffers with COPD (Chronic Obstructive Pulmonary Disease), had told his employer that he was “bad in bed all day with his chest” and denied being at the club on the day in question.
At the disciplinary hearing it was noted that Mr Kane had been spotted several times smoking and drinking at the club and he was told by the manager at the meeting “surely if you had been unfit for work and on antibiotics, you shouldn’t be in the pub.” The employee was dismissed for breach of trust and dishonesty.
The tribunal judge found that there was nothing in the disciplinary procedure that prohibited an employee from acting in the way that Mr Kane had done. The judge also found the investigation and disciplinary hearing were inadequate and that the employee had done nothing to contribute to his dismissal.
Learning for employers
- Robust disciplinary procedures both in terms of conducting a thorough investigation and complete disciplinary process are essential.
- Dismissing an employee for breaching a rule that they were not aware of is risky when it comes to establishing a fair dismissal.
- Do not make assumptions about sickness absence. It may be reasonable for an employee to socialise whilst absent due to sickness. GPs may advise employees to undertake certain activities to assist with their recovery and rehabilitation.
- If an employee is off sick it does not mean they should be confined to their home.
This may not be the end of the line for the case as Debmat Surfacing may choose to appeal.
It is also important to note that this is an Employment Tribunal decision and is not binding on other Employment Tribunals. Only decisions at Employment Appeals Tribunal and above are binding.
Reminder – EU Settlement Scheme
EU nationals have until the 30th June 2021 to register for the EU Settlement scheme. Please check that all EU citizens that work for have successfully completed their application otherwise they may not be able to legally work for you from 1st July 2021 onwards.
Please note Irish nationals are except from this requirement.
Source: Gavin Parrott