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8th September 2021

Surfacing Driver Takes One for the Road

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Many employers have seen a reduction in sickness instances over the last sixteen months of the pandemic; furlough, flexible working and operating from home are significant contributing factors to this positive development.  A more fluid approach to work continues to improve the physical and mental well-being of the employee, and innovations in the support offered to staff is widening and changing potentially outdated sickness and absence policies.

So as a fresh and dynamic post-covid employer, how would you feel about your employee being spotted down the pub drinking and smoking on the first day of a three-week period of sick leave? Surely this is inappropriate behaviour, and misconduct?

Colin Kane had sporadic periods of absence from his driving job with Debmat Surfacing Ltd, suffering from chronic obstructive pulmonary disease (“COPD”), a lung condition, for several years.  He was observed by a colleague in a social club close to the employer’s base which was subsequently reported to the management team.

Kane was subsequently dismissed from his role and an appeal was also rejected.  He saw nothing wrong in his actions and stated others had done the same; the employer predictably saw the club visit as wholly wrong, dishonest and a breach of company regulations.  

The Employment Tribunal found that Kane was unfairly dismissed, citing Debmat’s poor procedures, lack of evidence and failure to act previously in similar circumstances.  Interestingly, the Judge reported that even then, there was only a 25% chance of the claimant being deemed to be dismissed fairly.

He made a curious statement about there being “no evidence upon which (Debmat) could rely, which suggested the claimant’s illness was harmed by this behaviour or his return to work delayed.”  It’s not difficult to conclude that COPD sufferers really shouldn’t be drinking and smoking and perhaps the Judge was referring to the naivety of the employer in failing to explore and collect medical evidence as part of the disciplinary procedure.  Judge Pitt also referred to the omission of specific clauses in the sickness policy that may guide the employee in understanding what actions would be viewed as inappropriate, during a period of sickness or absence.  

The learning here is that a robust, reasonably conducted disciplinary procedure is crucial; witness statements and medical evidence supported by a watertight sickness policy significantly strengthens the position of the employer when there is a belief that an employee is guilty of sickness misconduct.

So, should an employee go to the pub while on sick leave?  It must in my view be generally regarded as misconduct for a worker to abuse sick leave and in my opinion, Mr Kane has probably got away with one here – going for a drink and a smoke is surely a risky strategy!  However, the employer’s apparent failure to set out and communicate their position on sickness (followed by a weak disciplinary process) made the unfair dismissal outcome possible for Kane.

The workplace is changing post-covid and this may be a good time to review policies and procedures and explore that they are relevant to the developing landscape and new challenges faced within the workplace.  Sickness or absence instances are often complex and require thorough investigation with an objective, measured and reasonable approach.  Lighthouse is here to help, so please call 0300 303 5228 to discuss any points raised in this article.

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