Unfair dismissal for drinking in a social club whilst on sick leave

When I saw a news headline about this case not long ago, I couldn’t help but look further into this, as although the facts were clearly interesting, the news article didn’t delve too much into why exactly the dismissal was found to be unfair by the Employment Tribunal.

The crux of the matter was that the employee was dismissed for gross misconduct because the Employer became aware that he was visiting his local social club and drinking whilst off sick. The Employment Tribunal held that the decision to dismiss him was unfair for the reasons set out below.

Background

Mr Kane was employed as a driver by Debmat Surfacing Ltd in September 2012.

The Employer is a small business with less than 160 employees and with only three employees carrying out administrative work and no dedicated HR department.

Mr Kane suffers from long-term chronic obstructive pulmonary disease and was absent from work due to ill-health from 9 March 2020 to 30 March 2020. On 9 March 2020, Mr Kane was seen standing outside a social club by another employee, Mr Johnson, who was driving past. Mr Johnson’s account was that Mr Kane stepped backed into the social club to avoid being seen.

On his return to work that day, Mr Johnson informed the Managing Director, Mr Turner of what he had seen. Mr Turner spoke to Mr Kane later that day who said that he had been in bed all day with chest-related problems.

On 23 March 2020, another Managing Director, Mr Buggy informed Mr Kane that he was being investigated for dishonesty and breach of company regulations. The disciplinary policy contained in Mr Kane’s contract of employment set out examples of breaches of regulations which included unauthorised absence, persistent lateness, any conduct which may be detrimental to the operation or reputation of the company. There is also a non-exhaustive list of examples of serious misconduct which included theft and refusal to follow reasonable instructions.

Mr Kane attended an investigation meeting held on 26 March 2020 with Mr Buggy and Mr Johnson (who was asking most of the questions) in attendance. Mr Kane was informed that he was seen a number of times at the social club smoking and drinking and that when Mr Turner had called him, Mr Kane informed him he was in bed all day.

Mr Johnson questioned whether Mr Kane should have been at the pub if he was unwell and on antibiotics. Mr Kane’s response was that he had been there for a bit and saw nothing wrong with it.

Prior to the investigation meeting, Mr Kane received a letter from the NHS informing him that he needed to shield because of his health issues.

Mr Buggy subsequently wrote to Mr Kane setting out concerns regarding his behaviour during his sickness absence and in light of the fact that he was advised to shield by the NHS. Mr Kane was also informed that his actions were considered a breach of the disciplinary rules which would be dealt with accordingly.

A disciplinary meeting was held on 6July 2020. No evidence was supplied with the invitation letter, but Mr Kane was informed that it was in relation to his dishonesty and breach of company regulations.

Mr Turner held the meeting and Mr Kane confirmed that he attended the club on one occasion for 15 minutes and on another occasion for 30 minutes. Mr Turner informed Mr Kane that he had a photograph of Mr Turner drinking outside of the club but did not produce it at the meeting nor did he disclose when it was taken and by whom. Discussions continued and Mr Kane was later dismissed for breach of trust and dishonesty.

The letter confirming the outcome set out that Mr Kane was guilty of a ‘serious and wilful breach of the company rules’ which was considered gross misconduct.

Mr Kane appealed the decision, which was later heard by a Director, Mr Davidson who subsequently dismissed the appeal.

The Employment Tribunal Findings

In reaching its decision, the Employment Tribunal considered the following:

1. Whether there were reasonable grounds for believing Mr Kane had committed an act of gross misconduct.
2. Whether at the time the belief was formed the Employer carried out a reasonable investigation.
3. Whether the Employer acted in a procedurally fair manner; and
4. Whether the dismissal was within the range of reasonable responses.

The Employment Tribunal Judge highlighted the need for a proper record where there are allegations of misconduct. There appeared to be no witness statements from any potential witnesses for example, Mr Johnson or Mr Turner. The Judge also noted that no enquiries were made into where the photograph had originated from.

The Employment Judge also confirmed that the investigation was not one which a reasonable employer would have carried out with there being discrepancies about the date Mr Tuner called Mr Kane.

The Employment Judge also highlighted that there was nothing in the Employer’s disciplinary procedure which prohibited Mr Kane from attending the pub whilst on sick leave and that the Employer had made a gross assumption without evidence that he should not have attended the pub because of his condition.

A total of 6 flaws were identified by the Employment Judge in relation to the investigation including the fact that Mr Johnson was present at the investigation hearing and asked questions despite being a key witness.

It was also held that the disciplinary procedure fell below the standards expected of a reasonable employer because, amongst other reasons, the disciplinary procedure was flawed as it was held by Mr Turner who dealt with the initial complaint and was involved in the investigation and was therefore bias. The Employment Judge noted that the Employer is a small business but that arrangements could have been made to ensure a fair unbiased process was followed.

The Employment Judge considered that if a fair procedure was followed Mr Kane may have been dismissed and there would have been a 25% chance of dismissal but in the circumstances, Mr Kane’s dismissal was unfair. 

Points to consider

You might be thinking about how your business would have handled matters if it were faced with similar circumstances.

One point to take from this is that if the business feels a certain way about particular conduct, then it is important that your employees are aware of this. If the matter is to be considered by the business as so serious that it would amount to a gross misconduct then it is important that it is clearly set out in the disciplinary rules.

It is also important to ensure that if you are going to hold an investigation, those involved are not involved in any subsequent disciplinary procedure. This case also highlights that key witnesses should not be involved at any stage.

A record of minutes, discussions, emails, and any other form of communication written or otherwise should be kept.

It also important to collate evidence wherever possible in the form of witness statements and documentary evidence. Should the matter result in an Employment Tribunal claim it pays to have a record of events also because it is highly likely that witnesses will forget finer details of events if it goes back a significant period of time.

Ensure that those dealing with each stage of the process (the investigation, disciplinary and appeal) have had no prior involvement in the matter to avoid any risk of bias being formed.

The reasons for the judgment can be read here: Kane v Debmat Surfacing Ltd