An Employment Tribunal has ruled that an employee who was seen drinking in a public house when he was absent from work due to ill health was unfairly dismissed.

In March 2020, the Claimant, Mr Kane, who suffers from chronic obstructive pulmonary disease (COPD), notified his employer that he would be absent from work due to ill health. However, when Mr Kane was seen drinking and smoking in a public house by a colleague later that day, Mr Kane’s employer commenced disciplinary proceedings against him. He was later dismissed for dishonesty and breach of company policy.

However, the Employment Tribunal found that Mr Kane had not breached any company policies by visiting the public house when he was absent from work due to ill health as the company’s policies did not prohibit employees from socialising when they were absent due to ill health. As a result, it was held that Mr Kane had been unfairly dismissed. In addition to this, the Employment Tribunal held that there had been several flaws in the disciplinary investigation which resulted in a disciplinary process which fell below the standard of a reasonable employer.

This decision is likely to surprise many employers, who may have concerns about how it will impact their ability to handle potential misconduct issues relating to dishonest sickness absences. However, whilst this decision highlights important factors for employers to consider when managing absences, it does not mean that employers are unable to challenge an employee they suspect is taking advantage of sickness absences.

Darwin Gray would therefore recommend that employers:

• Have a clear absence policy which is accessible to all employees
• Conduct back to work meetings with employees when they are absent due to ill health to better understand the cause of the absence
• Be mindful not to jump to conclusions if presented with evidence of an employee’s dishonest behaviour whilst on sickness absence
• Consider the individual facts of each case and remember that employees do not need to be bed-bound in order to be considered unfit for work
• Conduct a thorough and fair investigation into the employee’s conduct before commencing a disciplinary process