Can employees on sick leave carry on socialising? Katie Hodson, Partner, reports on a recent case which shows the importance of a thorough investigation in all employment-related matters.
There has been a great deal of media coverage surrounding a decision of an Employment Tribunal concerning an employee who was allegedly seen in the pub during a period of sick leave. The way in which the case has been reported suggests the Tribunal Judge is in essence letting Claimants off the hook in terms of their activities whilst on sick leave.
The reporting of this case has, understandably, sparked confusion and concern amongst employers, as well as questions as to whether policies and procedures should be amended to include a clause prohibiting employees from socialising whilst on sick leave.
The Claimant, Mr Kane, suffered from chronic obstructive pulmonary disease (COPD). It was alleged that he was in the pub during a period of sick leave. This was witnessed by a fellow employee, Mr Johnson, who reported it to a Managing Director, Mr Turner.
It was alleged that, during a telephone conversation with Mr Turner, the Claimant said he had been at home all day in bed due to his chest.
The incident was investigated by Mr Johnson, the allegation being that the Claimant attended the pub on ‘several occasions, consuming alcohol and smoking’. A disciplinary hearing took place, following which the Claimant was dismissed for gross misconduct by Mr Turner. At the conclusion of the hearing the Claimant was told he was being dismissed for breach of trust and dishonesty. The disciplinary outcome letter stated the reason as ‘serious and wilful breach of the company’s rules’.
Why did the Judge decide the dismissal was unfair?
The Judge found numerous flaws in the Respondent’s procedure, both in terms of the initial investigation and the disciplinary process.
The Respondent did not take written accounts from any witnesses. The Judge identified Mr Johnson, Mr Turner and a lorry driver who was passing the pub as witnesses who should have been asked for statements. This could have corroborated Mr Johnson’s evidence and strengthened the Respondent’s position, or it could have gone towards proving the Claimant’s innocence.
The Judge highlighted the involvement of Mr Johnson in the investigation and Mr Turner in the disciplinary as serious flaws. The question was how these individuals could be impartial. Mr Johnson witnessed and reported the incident and Mr Turner had the phone call with the Claimant in which he allegedly said he was in bed all day, not in the pub. Considering one of the allegations against the Claimant was that he lied to Mr Turner, the Judge held that it was inappropriate for Mr Turner to have conducted the disciplinary hearing and made the decision to dismiss.
The Judge also raised an issue with the Respondent’s assumption that the Claimant should not be in the pub because of the nature of his condition. Firstly, there was nothing in the disciplinary procedure prohibiting an employee from acting in this way. Secondly, the Judge held that there was no evidence from which the Respondent could conclude that the Claimant had been advised not to leave his home, or that his condition would worsen by virtue of going to the pub. The Judge added that if the Respondent was going to rely on the fact the Claimant should not have been leaving his home, they should have obtained medical evidence to back this up.
What the decision means
Upon reviewing the judgement in full, the decision of Employment Judge Pitt is not quite as the media have reported it.
The main issue with the dismissal of Mr Kane was the investigation, or lack thereof. The Judge in fact stated that, as far as she could see, there was no investigation.
This is yet a further reminder of the importance of conducting at the very least a reasonable investigation. An employer would be best placed to protect themselves from potential claims by ensuring that the process they follow is fair and all lines of enquiry are followed up.
In the closing paragraphs of her judgement the Judge stated that had a fair procedure been carried out, the likelihood of dismissal was 25%.
An employer needs to be careful not to make assumptions, particularly without the backing of medical evidence. An employee being on sick leave does not necessarily mean that they are bed-bound. For example, an employee could be off due to mental health issues which does not prevent them from leaving the house. Remaining at home could in fact have a detrimental impact on their health.
Employers need not be panicked by this judgement. The important points to take away from it are to ensure investigations are thorough, disciplinary processes are fair and ultimately, to not make snap assumptions about the nature of an employee’s health condition and what they should or should not be able to do as a result.