The claimant was employed by a driver of the respondent company from September 2012 until his dismissal on 30th July 2020. The issue arose in relation to the claimant’s ill-health and sickness leading to him being absent from work between 9th March 2020 and 30th March 2020. The claimant suffered from COPD for several years and he was a smoker albeit trying to quit. 

On 9th March 2020, the first day of his sickness absence, he was seen at a Social Club by the contract’s manager. The contract’s manager informed the managing director that he had seen the claimant. The managing director telephoned the claimant, who on returning the call shortly afterwards, stated that he had been in bed all day as a result of illness. On 23rd March an investigation was commenced in relation to ‘dishonesty’ and ‘breach of company regulations’.  

At the investigation meeting it was put to the claimant that he was seen at the social club on several occasions and that he was drinking and smoking.   It was put to him that if he was unfit for work then he shouldn’t be at the pub. The claimant stated that he saw nothing wrong with it and it was put to him that the management team was not ‘comfortable’ with the claimant going to the pub when he was not fit for work. The disciplinary process was held up by the claimant receiving a notification that he should shield as a result of Coronavirus. After this passed, the claimant was invited to a disciplinary meeting on 6th July. The claimant was not given any witness statements nor was he given any photographs. 

Similar questions were put to the claimant as in the investigatory meeting and it was put to the claimant that there was a photo of him outside the Club, yet this was never shown to him. At the end of the disciplinary meeting, the claimant was dismissed for breach of trust and dishonesty. The subsequent letter confirming dismissal stated it was for serious and wilful breach of the company’s rules amount to misconduct. His appeal was unsuccessful. 

In examining the dismissal, the Tribunal found that the investigation was not one which a reasonable employer would have done. The investigation was no more than speaking to the claimant. There were allegations of being at the Club on several occasions, yet they were not evidenced. There were also errors in the dates of phone calls between the claimant and the managing director. Furthermore, there was nothing in the disciplinary procedure which prohibited certain conduct when an employee was absent due to ill-health. The assumption that the claimant should have been at home due to the fears of coronavirus, was no more than an assumption which had no evidential basis. As a result of these errors, it was found that the claimant had been unfairly dismissed on procedural grounds. In terms of a Polkey reduction the Tribunal found that if a proper investigation had been carried out then there was only a 25% chance that the claimant would have been dismissed. 

Practical Lessons

The headline that an employee was successful for unfair dismissal when they were at the pub on sick leave is a loaded one. It is one that does not fairly reflect the decision that has been made. Instead, this case should be taken as demonstrating the importance of having a proper investigation and an evidential basis (both in fact and in relation to procedural rules) for making a decision. The lack of both here led to the finding of unfair dismissal. This does not give authority to employees to be absent and go to the pub. 
https://assets.publishing.service.gov.uk/media/60bdee22d3bf7f4bd842e22f/Mr_C_Kane_v_Debmat_Surfacing_Ltd_2501862-20_Reasons.pdf