• Contact Us

Can an Employee Socialise When Signed Off Through Ill-Health?

on Friday, 18 June 2021.

In a recent widely reported case, an employment tribunal found that an employee, who admitted to being at a social club on two different occasions whilst signed off due to ill-health, was unfairly dismissed.

Mr Kane worked for Debmat Surfacing ('Debmat') as a driver, and was dismissed from his role after a colleague reported that they had spotted him smoking outside a bar in March 2020. Mr Kane, who has a chronic obstructive pulmonary disease, had been signed off work due to ill-health and, when his employer rang him to question him about being at the social club, Mr Kane told his employer that he had been "bad in bed all day with his chest", but did admit to being there the day after.

Debmat informed Mr Kane they would be carrying out an investigation on the grounds of 'dishonesty and breach of company regulations.' During the investigation meeting, it was put to Mr Kane that he had been at the club "several times drinking and smoking", however Mr Kane responded that "he had only been there for a bit and he didn't see a problem with that." Following a disciplinary hearing, Mr Kane was dismissed for a 'breach of trust and dishonesty.'

Disciplinary Procedure Below the Standards of a 'Reasonable' Employer

An employment tribunal held that the decision to dismiss Mr Kane had been unfair. In particular, in was noted that there was nothing in Debmat's disciplinary procedure prohibiting an employee from acting in this way, and the investigation into Mr Kane's behaviour was not one which a reasonable employer would have undertaken.Indeed, the tribunal noted that there had been no investigation other than to speak to Mr Kane before disciplinary proceedings were commenced.

The tribunal noted that this case highlights the need to make a proper record in relation to allegations of misconduct, ensuring relevant evidence (such as witness statements from individuals involved) is obtained and documented. The case also shows the importance of conducting an investigation that is proportionate to the seriousness of the alleged misconduct.

What Can We Learn from This Judgment?

This decision raises interesting questions as to what employees can and cannot do whilst signed off due to ill-health, and when conduct that the employer deems inappropriate may amount to misconduct resulting in disciplinary action.

Whilst each case will turn on its facts, it is sensible to have a clear absence policy which sets out the standards of behaviour that are expected whilst staff members are absent, whether this is for one day or if they have been signed off for a longer period.

It will also be important in cases of ill-health to obtain appropriate medical evidence to avoid acting on assumptions. The tribunal in this case noted that Debmat had no evidence on which to conclude that Mr Kane had been advised not to leave his home or that he was acting contrary to his GP's advice.


If you would like advice on conducting a fair dismissal, or your disciplinary or other policies and procedures, please contact Ellen Netto in our Employment Law team on 07384812798, or complete the form below.

Get in Touch

First name(*)
Please enter your first name.

Last name(*)
Invalid Input

Email address(*)
Please enter a valid email address

Telephone
Please insert your telephone number.

How would you like us to contact you?

Invalid Input

How can we help you?(*)
Please limit text to alphanumeric and the following special characters: £.%,'"?!£$%^&*()_-=+:;@#`

See our privacy page to find out how we use and protect your data.

Invalid Input