People drinking in pub

Employees Allowed to Drink in Pub While Off Sick

Recent media reports have highlighted the apparently surprising case of Kane v Debmat Surfacing Ltd. An employee who was off sick, and visited a local pub, was found by an employment tribunal to have been unfairly dismissed by his employer. The employer sacked him for misconduct for attending the pub when he was supposed to be off sick, and for lying to his boss about it. This case has been reported on the basis that an employment tribunal has decided that employees can go to the pub while off sick; the reality, however, is a little more complicated.

In fact, this is a good example of how not to conduct an investigation/disciplinary process. The tribunal accepted that the employer genuinely believed the employee was guilty of misconduct, but it found that the investigation had not been reasonable and a fair process had not been followed.

The criticisms included:

  • Witness statements were not taken. There was no proper investigation at all.
  • The employee was not sent the paperwork in advance of the disciplinary hearing.
  • There was confusion over the date of a call from a manager to the employee, which was fundamental to the case.
  • A photograph was used as evidence without anyone apparently being clear when and how it had been taken.
  • The employee was told he had been seen in the pub on “numerous occasions” when in fact he had been seen only once, outside the pub.
  • The Claimant was accused of lying to a particular manager, who was clearly a material witness. However, that manager had done most of the questioning at the investigation hearing and had then chaired the disciplinary hearing. That manager cannot have been impartial, when the reliability of his evidence was one of the key issues. The tribunal considered that someone independent should have chaired the disciplinary hearing and that the appeal should have been to someone external (the tribunal suggest the Respondent’s representative). In our view, in making this suggestion, the tribunal is going too far in dictating what an employer should do.
  • The employer failed to clearly put the allegations to the employee at the hearing so that he could respond.

More fundamentally, the tribunal concluded that the employer had no basis for stating that the employee was not allowed to visit pubs whilst off sick, or that he should not be leaving his home at all. There was nothing in any policy to that effect. The employer had obtained no medical evidence, and there was no basis for it to conclude that the employee’s actions would delay his recovery and return to work. The employer made assumptions about the nature of the illness which were not supported by any evidence.

In addition, given the confusion with the paperwork, the tribunal did not consider that the employer had a reasonable belief the employee had lied to his manager – the tribunal did not accept that he had done so.

The tribunal did not, therefore, decide as a general rule that employees are entitled to attend the pub while off sick, as has been reported, and the issue here is really around the inadequacy of the employer’s investigation.

Do remember that an employment tribunal decision is not “binding” on any other tribunal hearing, but this case serves as a cautionary tale about the importance of proper procedure, and the danger of leaping to conclusions about an employee’s activity when off sick.

Indeed, this is an issue we are asked to advise on regularly. The employee is off sick, but s/he has been seen on Facebook attending a night out, or a weekend away, even a foreign holiday. Surely, they can be sacked?

Possibly yes, but in many cases the employee will be doing nothing wrong. This is so particularly in the case of absences due to mental health issues. In these instances, the employee may even have been advised to take a trip/have some relaxation time. Being able to go on a night out is not necessarily inconsistent with being unfit for work.

The two main areas an employer may seek to pursue are:

  • The employee’s activities while off sick show that they are lying about being unfit for work. That is difficult to establish (unless the employee has claimed to have a broken leg and is seen running a marathon, for example) especially where a GP has certified that unfitness. An employer seeking to make this argument will generally need to get medical evidence as to whether the employee’s activities are inconsistent with being unfit for work.
  • The employee’s activities are likely to prolong their ill health and therefore their absence. Again, medical evidence will be needed, and may be difficult to obtain

The reality is that while it will be galling to see evidence of an employee enjoying themselves while off sick, and receiving sick pay from the employer, it is very dangerous to jump to conclusions.

A full investigation is required, with documentary evidence and witness statements being put together. The employer needs to be clear on what exactly the employee has done wrong and why that is misconduct. Medical evidence needs to be obtained. A fair process should be followed with appropriate managers assigned to the investigation, disciplinary and appeal stages.

Don’t make the same mistakes as the employer in this case!

Douglas Strang, Senior Associate dst@bto.co.uk / 0141 221 8012

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