Many employers will be surprised to learn of a recent Employment Tribunal decision that an employee who was dismissed when he was caught smoking and drinking outside a pub whilst on sick leave had was unfairly dismissed and entitled to compensation.
In the case in question the employee, a driver with a Tyneside resurfacing company had COPD (a serious and longstanding lung position) which led to several periods of sickness absence. During one of these periods in March 2020, he was spotted by a passing colleague as he stood smoking outside a pub. The colleague’s evidence was that the employee saw him approaching in his company vehicle and stepped back into the pub in an attempt to hide. In the investigation which followed it appeared that the employee had been to the pub on several occasions whilst on sick leave and that he had smoked and drank alcohol while he was there. On one occasion he had apparently told his supervisor that he had been at home in bed all day.
Perhaps unsurprisingly, his employer took the view that he had committed gross misconduct and dismissed him. In upholding his claim that he had been unfairly dismissed, the Tribunal made the following key points:
- The employer had not conducted an adequate investigation and had not properly separated the investigation from the disciplinary proceedings which followed it;
- The employer had made assumptions about the employee’s medical condition;
- The employer could not adequately explain why it had previously treated employees in similar situations more leniently;
- As the employer has not asked the employee at the disciplinary hearing whether he had lied about “being in bed all day”, its conclusion that he had done so was not supportable.
Most importantly perhaps, the Tribunal noted that the employer’s disciplinary rules did not say anything about expected behaviour whilst on sick leave and certainly did not require the employee to remain at home. Although the employer’s sense of fairness and natural justice was (perhaps rightly) offended, the employee had not in fact broken any company rule and so his dismissal for misconduct was unwarranted and unfair.
Although the decision is surprising at first glance, after reflection it is clear that it’s a textbook approach to the law on unfair dismissal. If we as employers feel that something is important enough to result in dismissal, it is not unreasonable that we tell our employees clearly that this is the case. We should not jump to conclusions and we should remember that “not being fit for work” isn’t the same as “not being fit to leave the house”. And we should never, ever underestimate the importance of following clear and fair processes when investigating concerns and dealing with any disciplinary action which results from them.