Anyone who has ever phoned in sick will be familiar with the feeling; will the boss think I am faking it to bunk off work? There has been an unspoken culture of presenteeism in the workplace and a fear (rather like being at school) that taking sick leave may appear like playing truant.
Of course, to then be seen by your boss out and about when on sick leave would, understandably, fill many with dread. What to expect when you go back to work? A reprimand? Written warning? Demotion? Dismissal?
This was the exact situation faced by Colin Kane, a driver at Debmat Surfacing Ltd, in a recent employment tribunal case.
Kane, who had some health conditions including chronic obstructive pulmonary disease, had commenced sick leave on 9 March 2020. On the same day, the contracts manager from Debmat was on his way back to the offices when he claimed to see Kane smoking outside of a social club. The manager reported the information to Debmat officials and so began a chain of events that would, eventually, see Kane dismissed.
To briefly summarise – after phone calls, basic investigations, disciplinary proceedings and various oral testimonies – Debmat believed that if Kane was so ill, he should not be at the pub and concluded that his actions were inappropriate. Kane was dismissed for a breach of trust and dishonesty.
The disciplinary outcome letter set out the allegation ‘that [Kane] was attending the pub on numerous occasions, consuming alcohol and smoking while being signed off on sick with chronic lung disease/chest infection and claiming to be at home in bed’. The company said Kane was guilty of a serious and willful breach of the company’s rules, which constitutes gross misconduct, and therefore Kane was dismissed.
After unsuccessfully appealing his dismissal, Kane took Debmat to an employment tribunal, which pointed out many flaws in the investigation and disciplinary procedure. The judge found there was actually ‘no investigation other than to speak to the claimant’ before disciplinary proceedings were commenced. No evidence was presented, no witness accounts were written down and testimonies had errors and inconsistencies.
The core claim was that Kane should not be in a public house because he was absent through ill health, but there was nothing in the disciplinary procedure specifically prohibiting an employee from acting in this way.
The judge concluded that going down the pub while off ill does not necessarily constitute misconduct, cited a ‘gross assumption’ on behalf of Debmat and ruled that Kane had been unfairly dismissed. The judge noted there was no evidence that Kane had been medically advised not to leave his home.
The impact of the ruling
The controversial ruling acts as a warning to employers in not only how they handle sick leave policies, but also disciplinary investigations and making judgments on people who have taken sick leave. In this instance, not following a full and balanced procedure and assuming that an employee was either not genuinely or sufficiently ill enough to be able to do certain activities without obtaining medical evidence opened a can of worms.
This is especially pertinent following the significant shift in working patterns due to the pandemic. Flexible working is a good option for an employer to reduce that concern about a sick note culture. This is made even more intense by the mental, emotional and physical pressures that many employees will have been under as a result of lockdown – and the last thing an employer wants is an unhealthy work environment.
Marie Hoolihan is an associate at King & Spalding