Going to the pub whilst off sick "not sackable offence"

An employment judge has ruled that going to the pub while off work sick is not necessarily a sackable offence.

 

When ruling at a tribunal over the case of a driver who was fired after being caught going to a social club having called in sick, Judge Andrea Pitt said unless a company has specifically forbidden employees from socialising while ill, they are free to do as they like.

 

66-year-old Colin Kane had told his bosses he spent the day in bed "with his chest" while suffering from a serious lung condition, however Mr Kane, was spotted by a colleague smoking and drinking outside a pub close to their workplace. He is now in line for compensation after winning a case for unfair dismissal.

 

The Newcastle hearing was told that Mr Kane, who has worked for Tyne and Wear-based company Debmat Surfacing since 2012, had suffered with chronic obstructive pulmonary disease – a condition which mainly affects smokers and causes breathing difficulties - for several years, and was often absent from work for periods of time. The tribunal heard that Debmat Surfacing had launched disciplinary action against Mr Kane for dishonesty and breaching company rules shortly after he was caught on March 9 2020, 

 

Mr Kane admitted going to the social club for 15 minutes on one occasion and for 30 minutes on a second occasion In a disciplinary meeting. A managing director of Debmat Surfacing, John Turner said to Mr Kane: "I wouldn't expect a member of staff who is too ill to be at work [to be] out on the drink. Do you think it's reasonable? "I phoned you on Tuesday to see how you were, you didn't answer. When you called me back later on, I asked how you were," Mr Turner told Mr Kane. "You informed me you'd been in bed all day and had just gotten up, yet this is one of the days that you were seen in the club, is that correct?" Mr Kane denied being at the club on the day he was called, but was summarily fired in July 2020. 

 

Mr Turner said to him via letter that he had been found guilty of gross misconduct for "attending the pub on numerous occasions, consuming alcohol and smoking whilst being signed off on the sick". However, Judge Pitt found the investigation into Mr Kane to be flawed, and upheld his claim of unfair dismissal, she pointed out that the company's rules do not prohibit employees from socialising while off sick. She said: "It was put to [Mr Kane] he should not be in a public house because he was absent through ill health. "There is nothing in the disciplinary procedure prohibiting an employee from acting in this way."

 

The Johnson Partnership

Nottingham Solicitors