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 Unfair dismissal …Employers should be careful and be thorough


In a 2021 case, an employer dismissed an employee after he was seen at a social club smoking during a period of sickness absence. The employment tribunal has now ruled that this was an unfair dismissal.


Mr. Kane (K), who was employed by Debmat Surfacing Ltd (D) as a driver, had several episodes of sickness absence during his employment due to ill health. Some of these related to K having chronic obstructive pulmonary disease which can amount to a disability.

One such episode of sickness absence occurred in March 2020. On the first day of that episode K was apparently seen smoking outside a social club by one of D’s managers.

Consequently, D contacted K who said that he had “been bad in bed all day with his chest” on his first day of sickness absence. However, whilst K whilst denied being in the social club on that day, he admitted to being there the following day.

Towards the end of March 2020, due to his health conditions, K was directed to shield by the NHS following the coronavirus outbreak. This meant that he was unable to attend work.

A few days later D started a formal disciplinary investigation alleging “dishonesty and breach of company regulations” on K’s part. It also said that if K had been unfit for work and on antibiotics he should not have been in the social club.

Although K was interviewed, D didn’t seek any other written witness statements, e.g. from the manager who spotted him in the social club. In addition, despite relying on a photograph as evidence, D never gave K a copy of it (which it ought to have done).

D dismissed K on the grounds that his “actions were inappropriate” and a “breach of trust and dishonesty”. K then claimed unfair dismissal. The tribunal ruled in K’s favour, noting that there was no workplace or other rule which says that employees can’t socialise in whatever way they deem appropriate whilst off sick (such a rule may well be unreasonable in any event).

It also found that D had made a gross assumption about K as there was no evidence (medical or otherwise) that he should not have been at the social club.

So there are a few lessons to be learnt from this decision

Never dismiss on verbal witness evidence alone. Written witness statements must be taken from all relevant witnesses

 All evidence that you intend to rely upon must be given to the accused in advance of any disciplinary hearing. As well as copies of all written witness statements, this includes photographic evidence, documents, policies, correspondence and any information in the public domain, e.g. posts from social media accounts.

 Where an employee is spotted out and about during a period of sickness absence, it will be dangerous to automatically assume that they are doing anything wrong. A decision to socialise with friends could have been to benefit their health or taken on medical advice.

If you need any employment advice on discrimination or other issues, please contact our employment team or Julie directly at Julie.leonard@edwardsandcompany.co.uk

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