I recently spent some time away at the Cotswolds spending, what was meant to be my wedding day, relaxing, eating and site seeing – it was bliss! I also was very fortunate that the weather seemed to sort itself out finally and was absolutely perfect – it was like I was abroad. Although, now we are back to the dreary English weather, I do wonder when the sun might show its face again.
The reason for this blog is because I wanted to mention a case that I think will be of interest to many.
The case is Mr C Kane v Debmat Surfacing Ltd is about an employee who was dismissed for being out at a social club whilst he was off work sick. Interestingly, the Tribunal has recently ruled that his dismissal was unfair. Curious? Yes, me too.
To give you a bit of background, the Claimant worked as a driver for the employer and before his dismissal had been off work on various occasions as he suffered from chronic obstructive pulmonary disease.
On the 9th March, the first day of the Claimant’s 3-week period of absence due to ill-health, he was spotted outside a social club. It is said that later that day, the Claimant’s managing director called the Claimant to check up on him and the Claimant informed him that he had been in bed all day – never once mentioning his trip out. It was only the following day where apparently the Claimant then admitted to going to the club on a few different occasions.
Later that month, the Claimant’s employer began an investigation into the Claimant’s conduct alleging ‘dishonesty and breach of company regulations’. A disciplinary hearing then ensued which then resulted in the Claimant being dismissed by his employer. The Claimant did appeal, however, the appeal was rejected by his employer.
The Claimant then went on to bring a claim of unfair dismissal against his employer, where the ET ruled in favour of him. The judge noted that there were ‘flaws’ in the employer’s investigation and that their disciplinary procedure fell short of the standard of a ‘reasonable employer’. The judge pointed out that there was nothing within the employer’s disciplinary procedure regarding ill-health, nor was there any medical evidence provided which would support the idea that the claimant’s illness was harmed by his behaviour or that it delayed his return to work.
This case does give some food for thought. It means that an employer should not just expect that because their employees are off work sick that they should be at home locked up and in a dark room, never to enter the outside world during their period of sickness absence. And that unless there is an appropriate policy in place or a disciplinary rule against acting in such a way, an employer will not be able to fairly discipline an employee for socialising whilst off work sick. UNLESS… the employer can provide evidence that the employee’s sickness is not genuine or their behaviour could risk making their condition worst.
Employers who are considering taking disciplinary action against an employee for their behaviour whilst off sick, need to ensure that they investigate thoroughly, and if appropriate, take medical advice to inform any decisions.
This case is also a very clear warning for employers to make sure that they have clear policies on sickness absence which provides guidance to their employees on what is expected of them should they have to be absent from work due to sickness.
It also touches on dishonesty. This employee was dishonest initially before coming clean, but that wasn’t in itself enough to justify the dismissal – words of warning!
If you need any help with such a policy or have any queries about anything mentioned in this blog then please feel free to contact a member of the team.
Until next time…
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