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Two Pints of Lager and a Packet of Compensation

BB
BY Ben Brown
Employment Law & HR

This month brought us the employment tribunal case of Kane v Debmat Surfacing Limited, in which an employee had been unfairly dismissed for visiting the pub during a period of sick leave. Mr Kane suffered from chronic obstructive pulmonary disease (COPD) and was absent from work as a result fairly frequently. During his absence between 9th and 30th March 2020, he was spotted by a colleague having a cigarette outside a local pub despite telling his employer that he had been bedridden that day.

The employer conducted an investigation and disciplinary process and dismissed Mr Kane for gross misconduct, specifically as he’d committed a breach of trust and had been dishonest. During the investigation process, the employer had made remarks about the appropriateness of Mr Kane attending the pub whilst on antibiotics. The manager to whom the witness reported seeing Mr Kane took the decision to dismiss and there was confusion over the date of the incident. No witness statements had been taken and there was a reference to a photograph of Mr Kane at the pub but the employer had not verified when the photo was taken and by whom.

 

The tribunal found that the standard of investigation fell below that of a reasonable employer. It also found that there was nothing in the employer’s disciplinary policy which prohibited employees from going to the pub during periods of sickness absence. The employer had made broad assumptions about the nature of the employee’s condition and the appropriateness of his behaviour despite the general principle that an employee is not prohibited from undertaking other activities whilst off sick from work, provided this isn’t fundamentally at odds with the reasons behind their absence.

 

An employee’s fit note confirms that they are unfit to attend work and perform their normal duties. This should normally be accepted as evidence of their incapacity unless further compelling evidence comes to light which calls this into question. The tribunal was satisfied that Mr Kane had been dismissed unfairly and, perhaps surprisingly, that he hadn’t contributed to his dismissal by way of his conduct. There potentially could have been a fair dismissal in this case had the process followed been significantly more robust so employees should not interpret this judgment as giving them permission to go out Kane-ing it whilst off sick.

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