Dismissal of employee who visited pub while off sick ruled unfair

The Employment Tribunal has ruled that a company acted unfairly when it dismissed an employee because he went to the pub while off sick from work.

The case involved Mr Colin Kane, who worked as a driver for Debmat Surfacing, a company that lays tarmac.

Kane suffers from chronic obstructive pulmonary disease, which causes breathing difficulties and mainly affects smokers.

He called in sick in March last year saying he was spending the day “in bed with his chest”. However, he was then seen in a pub drinking and smoking that same afternoon.

He was called before his manager, Shaun Johnson, who told him: “Surely if you had been unfit for work and on antibiotics, you shouldn’t be in the pub.”

The company began disciplinary proceedings against Kane for dishonesty and breaching company rules. He admitted he visited a social club for 15 minutes on one occasion and for 30 minutes on another. He was dismissed for gross misconduct.

Kane brought a claim of unfair dismissal and the Employment Tribunal found in his favour.

Judge Andrea Pitt found that the company’s investigation was flawed because the company’s rules did not prohibit employees from socialising while taking sick leave.

She said the company had “made a gross assumption, without evidence, that the claimant (Mr Kane) should not be at the social club because of the nature of his condition”.

Compensation will be decided at a separate hearing.

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