Meet Mr Kane, a 66 year old driver who won an unfair dismissal claim after being caught in the pub after calling in sick
Here is an interesting case for you… An employment tribunal sitting in Newcastle has recently upheld an unfair dismissal claim brought by a man who called in sick but was then seen at his local club two days running by a colleague. Employers, you will probably be horrified to read this; and your employees are probably now thinking about bunking off to watch the next England match in the pub! Well, perhaps it’s not time to get too excited just yet. The employee in this case, Simon Kane, had a medical condition called chronic obstructive pulmonary disease. He had called in sick and told his boss that he had been “bad in bed all day” because of his chest. He was then off work for a few days. When Mr Kane’s manager saw him outside the local social club, Mr Kane was called into a disciplinary meeting with his boss. Mr Kane’s case was that he had not been at the club the day he said he was in bed. He admitted he was there the next day but said it was not for long. He was dismissed anyway, for breach of trust and dishonesty. The reason Mr Kane’s case for unfair dismissal succeeded mainly came down to a lack of fair process. The tribunal found that his employer had not carried out a proper investigation into what the manager had seen and what Mr Kane was doing, statements were not taken from witnesses, and assumptions were made about Mr Kane’s health and what he could and could not do. Interestingly, Judge Pitt also pointed to the fact that there was nothing in the employer’s disciplinary procedure or rules which said that an employee could not be in a pub when off sick. You might perhaps think that it goes without saying – and we would not necessarily disagree - but it all depends on context. One scenario we have seen a few times is when an employee is off sick with mental health issues, like stress or depression. The employer then sees photos or stories on social media of things the employee has been getting up to, like socialising or drinking, travel or even holidays. Employers are often angered by this and feel that if the employee can do those things, they should be in work. But unfortunately, it isn’t that clear cut. The question is always whether the person is fit and able to work ; it is not a question of whether they can do anything at all. For example, if someone is a taxi driver or building labourer and they break their leg, they are not likely to be able to do much work but they could go out for dinner or to the pub. If we substitute the broken leg for depression, someone might not be in a fit state to work because of things such as the stress involved, the need to look presentable, needing to be consistent, a tendency to breakdown etc. However, socialising with friends or engaging in sport might not only be good for them, but it might also be recommended by their doctor. Take away? What to take away from this, then. First up, we are not suggesting that anyone tries to be like Mr Kane. If you call in sick to go to the pub and watch England play, it is probably going to be misconduct - abuse of sick leave and pay, dishonesty, generally not a good idea – and you won’t get very far with an unfair dismissal claim. Employers, however, should be mindful of context, and should take the time to consider the circumstances fully before dismissing an employee who is seen out and about, or on social media, while off sick. This is particularly the case if the employee is known to have a disability or to suffer with mental health issues. Dismissal may be justified; there will certainly be cases where it is. But it may not, and as an employer, you don’t want to have a Mr Kane-style case on your hands.
