Can I Sack My Employee If They’re Caught In the Pub Whilst Off Sick?
Published on June 21st, 2021 | by Sophie West
What would you do if you saw your employee at the pub, during working hours, when they are on sick leave? It is easy to assume that you could ‘sack them’ as they shouldn’t be at the pub if they are meant to be unwell.
Debmat Surfacing sacked Kane for this very thing and were taken to tribunal by Kane for unfair dismissal.
Kane recently won his case against Debmat Surfacing for unfair dismissal as the tribunal found a series of flaws during the investigation and disciplinary procedure. In light of these errors, the tribunal found that Kane was unfairly dismissed and had the Company followed the correct procedure, there would have been only a 25% chance of dismissal.
During the tribunal, Mr Kane had admitted to being in a social club whilst he was absent from work. However, the tribunal found that the Company had not conducted a thorough investigation, nor did they have in their disciplinary procedure to say that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness. In addition, the Company did not have a HR department, nor the support of a dedicated HR professional. This has proved costly.
It was an interesting case to read and the outcome of the tribunal was definitely eye-opening.
What should I take from the outcome of the Kane vs Debmat tribunal case?
First of all, it is important to get advice from a HR professional when dealing with these matters. Even if you don’t have an internal HR department, you can get advice from a HR Consultancy. Even if you do have internal HR representation, it does no harm to seek further support and advice from a HR Consultancy.
Secondly, it is important to remember that even if you have a small business with not many employees, anyone over 2 years’ service can make a claim for unfair dismissal which can be costly for your business.
So make sure that you conduct a thorough investigation and take minutes of every meeting to avoid confusion of dates or evidence. You need to ensure that you explore every avenue of the investigation including witness statements if necessary. Documentation is key. As long as you document all letters, meeting minutes and evidence you will be able to demonstrate that a fair process has been followed. It’s all about dotting the I’s and crossing the T’s.
Lastly should the investigation outcome be a recommendation to take the situation through to a disciplinary hearing, make sure that your disciplinary procedure is watertight and that you follow it to a T. No cutting corners! Part of the decision for the tribunal in this case, was that there was no specific reference which states that an employee cannot socialise in a way they deem inappropriate if they are absent from work due to illness. You need to have sufficient evidence to back up any claims that you have against an employee. Additionally, it is important to have someone impartial conducting the investigation and a different person conducting the disciplinary to avoid any bias views. Tribunals will always look at whether the process has been fair, and part of that is that there is consistent impartiality.
Always remember – the outcome should be based on facts not opinion.
If you need any HR support or advice please feel free to contact us direct on 01527 571617 or email us at agilityhr@agilityrac.com and we will be more than happy to support you. It is better to be safe than sorry when it comes to dealing with disciplinaries and you want to protect your Company from finding yourself at an employment tribunal for a mistake that could have been avoided.
Source: https://www.gov.uk/employment-tribunal-decisions/mr-c-kane-v-debmat-surfacing-ltd-2501862-slash-2020
