UK: Can an Employee Really Visit a Pub While on Sick Leave?

​The U.K. employment tribunal judgment in the case of Kane v. Debmat Surfacing Limited attracted a lot of media attention recently. Headlines included "Visiting pub while off work sick is not sackable offence, judge rules" (The Metro) and "Man sacked for drinking outside social club while pulling a sickie wins tribunal" (iNews). This coverage could have led some readers to believe that employees are within their rights to participate in activities, such as going to the pub, which are inconsistent with the reasons given to their employer as to why they had to take sick leave.

While it is true that the claimant was successful and was deemed to be unfairly dismissed, this is a scenario where further context is needed to understand why the employee was successful with his claim. The employee being spotted drinking in a pub during a period of sickness absence was merely the background to the outcome of this case.

The Facts

The employee suffered from chronic obstructive pulmonary disease and had periods of absence due to ill health. On the first day of a particular period of sick leave, the employee was seen drinking at a Social Club by one of his colleagues, who informed one of the managing directors. During a subsequent phone call between the managing director and the employee, the employee purportedly said that "he had been bad in bed all day with his chest."

An investigation meeting was held, following which the employee received a letter inviting him to a disciplinary meeting stating that "this action is being considered with regards to your dishonesty and breach of company regulations."

At the disciplinary meeting, the employee was told that he was being dismissed for a "breach of trust and dishonesty." An appeal hearing subsequently took place and the appeal was rejected.

An Overview of Unfair Dismissal

Before analyzing the true reason why the employment tribunal held that the employee was unfairly dismissed, it is helpful to provide an overview of the elements of an unfair dismissal.

The dismissal of an employee will be unfair unless:

• The employer can show that the reason—or principal reason—for the dismissal was one of the five potentially fair reasons. Conduct is one of the fair reasons for dismissal.
• The tribunal finds that, in all the circumstances, including the employer's size and administrative resources, the employer acted reasonably in dismissing the employee for that reason.

In this case, the employer relied on the employee's conduct for dismissing him. It followed that the tribunal then had to decide whether the employer acted reasonably in dismissing the employee. The test for reasonableness is usually divided into two parts:

• Did the employer follow a fair procedure?
• Did the employer act reasonably in treating the reason as a sufficient reason for dismissal (i.e., was the decision to dismiss within the range of reasonable responses of a reasonable employer?)

The Outcome of the Claim

In this case, the judge concluded that the investigation that was undertaken was not one which a reasonable employer would have carried out. There was no investigation, other than to speak to the employee before disciplinary proceedings were commenced. A lack of corroborating evidence was gathered, such as supporting statements from potential witnesses, in relation to the employee's presence at the pub on the date on which he was accused.

The judge concluded that the employer's procedure fell below the standard expected, largely because of the manner in which the disciplinary hearing was conducted. One of the key witnesses in this case, who took the initial complaint, chaired the hearing, when it should have been conducted by an independent person.

Therefore, it was held that the employer did not act reasonably in dismissing the employee because it did not carry out a reasonable investigation and the dismissal was procedurally unfair. As a result, it was found that the employee was unfairly dismissed.

An additional point was made by the judge: There was nothing in the employer's disciplinary procedure prohibiting an employee being in a public house while he was absent from work due to ill health. The judge noted that there was "no rule the employer could point to which said that an employee cannot socialize in whatever way they deem appropriate while absent from work through illness" and that there was no evidence to conclude that the employee had been advised not to leave his home.

Guidance for Employers

When considering the misconduct of an employee, the employer should carefully investigate the facts of the employee's conduct. Evidence should be gathered and written statements should be taken from any relevant witnesses. If the alleged misconduct relates to activities done while on sick leave, the employer should investigate the employee's medical condition and should avoid making assumptions.

For the sake of clarity, if an employee is found to be doing something while on sick leave that is inconsistent with the reason given for their absence, there is a good prospect that this would be seen as misconduct and could warrant disciplinary action. However, this case serves as an important reminder that an employer must always follow a full and fair procedure before it considers dismissing an employee, and that an employer needs clear disciplinary and sick leave policies that need to be followed as part of that procedure.

Sejal Raja and Ben Dos Santos are attorneys with RadcliffesLeBrasseur LLP in London. © 2021 RadcliffesLeBrasseur LLP. All rights reserved. Reposted with permission of Lexology.