As employment advisers, we find ourselves advising employer clients on the often vexed issue of whether employees are entitled to engage in social activities whilst signed off sick from work, whether that be shopping in town, going to the pub or playing sports. There is no simple answer to this question as it very much depends on the context of each individual scenario. This was neatly illustrated in the recent case of Kane v Debmat Surfacing Limited, which involved an employee who was signed off sick and was seen in the pub.
Facts of the case
Mr Kane was employed by Debmat as a Driver. He suffered from chronic obstructive pulmonary disease (COPD) and he had a number of periods of absence associated with his condition. His was signed off sick from 9th March 2020 and on his first day of absence he was seen by an employee of Debmat at a local social club. The Managing Director contacted Mr. Kane who denied having been at the social club that day and stated that he had been “bad in bed all day with his chest” albeit he admitted to being there the next day. The company subsequently launched an investigation into allegations that Mr. Kane had been dishonest and breached company regulations by going to the pub whilst being signed off sick. Following the investigation, Mr. Kane was invited to a disciplinary hearing with the Managing Director. No witness statements or photographs were provided with the invite letter.
The Managing Director concluded that Mr. Kane was guilty of a serious and wilful breach of the company’s rules by attending the pub on numerous occasions, consuming alcohol and smoking whilst being signed off on the sick with chronic lung disease/chest infection and claiming to be at home in bed. Mr. Kane appealed his dismissal but his appeal was rejected so he issued proceedings for unfair dismissal.
In deciding whether the decision to dismiss Mr. Kane was fair the Tribunal had to consider whether Debmat (1) had a fair reason for dismissal and (2) whether Debmat acted reasonably in treating that reason as sufficient to justify dismissal.
In terms of the reason for dismissal, Debmat relied on Mr. Kane’s conduct as a potentially fair reason for dismissal. As such the Tribunal needed to consider whether:
- there were reasonable grounds for believing Mr. Kane had committed an act of gross misconduct;
- Debmat had carried out a reasonable investigation;
- Debmat acted in a procedurally fair manner; and
- dismissal was within the range of reasonable responses.
The tribunal decided that the manner in which the disciplinary procedure was managed was not of the appropriate standard. A lack of supporting statements from witnesses, the lack of a proper investigation into the full details of the allegations and the disciplinary hearing being chaired by the Managing Director who was a key witness, all contributed to the judge concluding that the dismissal was procedurally unfair.
The Judge also made the point that Debmat’s disciplinary procedure did not have an express rule which prohibited employees on sick leave socialising in whatever way they deemed appropriate whilst absent from work due to sickness. Furthermore, there was no evidence Mr. Kane had been instructed to remain at home and this was instead a mistaken assumption by Debmat based on their understanding of his condition.
What this means
The Tribunal in this case has reinforced the importance of conducting a proper and thorough investigation into any alleged misconduct. Contrary to the press coverage the case received at the time, this decision does not give employees the green light to go and sit drinking in their local pub while they are off sick. Instead, it reminds us all of the need to assess cases individually and to not make assumptions about what individuals should and should not be doing whilst off sick.
The case also touches on the situation when an employee does something on sick leave which is inconsistent with the reason for their absence for example they claim to have broken their leg but are seen playing football. This is likely to constitute misconduct and how seriously you can treat that misconduct will depend upon a number of factors including the individual’s seniority, any vulnerability on their part, any prior warnings, and how this is categorised in the disciplinary policy.
Tips for employers
Employers should remember the following:
- Conduct a fair and thorough investigation of any alleged misconduct and document the process;
- Follow the company’s disciplinary procedure and rules;
- Investigate an employee’s medical condition if the alleged misconduct is inconsistent with any reason given for their sickness absence;
- Avoid making any assumptions about the impact of an individual’s health on their activities while on sick leave;
- Ensure you have in place a clear sick leave policy; and
- Implement a clear and comprehensive disciplinary policy.