Reasons to choose Wilson Browne
The recent case between Kane v Debmat Surfacing has been the topic of many conversations after the Employment Tribunal found that Mr Kane had been unfairly dismissed for socialising in the pub while taking a period of absence for his chronic obstructive pulmonary disease (COPD).
While this has led to much debate about what can and cannot be done when an employee is off sick, this case highlights the cost of procedural issues and a reasonable investigation – it is not as straightforward as it seems and therefore, it is crucial to dissect the reasoning that ultimately led to the Tribunal finding in his favour.
Facts of the Case
Due to his COPD, Mr Kane’s sick leave lasted from 9th March to 30th March 2020. Although he was a smoker, it is acknowledged that he was making a conscious effort to kick the habit.
On 9th March (the first day of absence) it was alleged that Mr Kane had been seen at a local social club (“Club”) by Shaun Johnson (“SJ”), the Contracts Manager for Debmat Surfacing, who was driving down the road behind a Debmat wagon. SJ stated that he was travelling back to work when he saw Mr Kane, who then stepped back into the premises so as to hide from the wagon.
When SJ arrived back at the premises, he informed John Turner (“JT”), the Managing Director, about what he had witnessed. JT decided to call Mr Kane who did not answer but returned the call shortly afterwards. During the conversation, JT’s recollection was that Mr Kane had said he had “been in bed all day with [his] chest.”
Mr Kane denied being in the Club on Monday 9th March but accepted that he had in fact been there on the following day, Tuesday 10th March 2020.
Thereafter, on 23rd March, Mr Buggy (another Managing Director) informed Mr Kane that he was being investigated for ‘dishonesty and breach of Company regulations.’
The investigation took place on 26th March and a majority of the questioning was conducted by SJ, who was also the prime witness to what was being alleged.
SJ put forward his assumption that if the employee had been “unfit for work and on antibiotics, [he] should not be in the pub”, to which Mr Kane stated that he had only been there for a bit and he saw nothing wrong with that.
After the meeting, a letter detailing the concerns was sent to Mr Kane about his attendance at the pub on “numerous occasions.” It went on to state: “we would have to assume that your GP advised you to stay in the house as much as possible, especially due to the current Coronavirus outbreak which puts you at greater risk due to your specific diagnosis, as has been confirmed by the recent letter you have received about self-isolating for a period of 12 weeks.” The letter concludes, “we consider your actions inappropriate, especially for someone with your diagnosis. We also view your actions as a breach of the company’s disciplinary rules, which we shall deal with at the end of your 12 weeks isolation”.
It is important to note that Mr Kane received a shielding notification from the NHS on 21st March.
The Disciplinary Hearing and Subsequent Appeal
On 24th June, Mr Kane was invited to a disciplinary hearing on 6th July. They relied on the allegation that “this action is being considered with regards to your dishonesty and breach of company regulations,” although no evidence such as witness statements or photographs were enclosed with the letter.
The hearing was held by JT and Mr Kane admitted that he had been at the pub for 15 minutes on one occasion and 30 minutes on the second occasion. JT referred to a photograph of Mr Kane drinking outside the pub, although the photo was never shown to him.
The dismissal was confirmed on 7th July 2020 based on the allegation that he was “attending the pub on numerous occasions, consuming alcohol and smoking whilst being signed off on the sick…and claiming to be at home in bed,” which was regarded as being a ‘serious and wilful breach,” amounting to gross misconduct.
Mr Kane’s internal appeal took place on 21st July and was based on two points:
- He was told that the telephone call with JT took place on Tuesday (10th) when it fact it was on Monday (9th); and
- Two other employees had been to the Club whilst they were ill and that Mr Buggy was aware of it.
On 22nd July, the Company confirmed that the decision to dismiss Mr Kane was being upheld and his appeal was not successful. The outcome letter acknowledged that the phone call had in fact taken place on Monday 9th March but relied on the assertion that Mr Kane did not disagree about lying to JT on the call. The second part with regard to disparity of treatment was also justified because one employee had left the Company and they did not know about the second one.
Key Factors Leading to the Decision
The Tribunal identified ample reasons as to why the dismissal was deemed to be unfair, all of which were linked to the procedure that was followed.
The investigatory stage and subsequent hearings were flawed because:
- No written statements were taken;
- SJ (the main witness) also conducted the investigation;
- Nobody else was asked about Mr Kane being at the Club;
- The Company made their own assumptions about his ill-health;
- The Company placed a lot of emphasis on the fact that any action while an employee is off sick, which delays a return to work, is misconduct. There was no reference to ill-heath in the disciplinary procedure and as of 23rd March, his inability to attend work was because of the shielding notification he had received;
- No proper enquiry was conducted into the photograph;
- The allegation was based on alleged dishonesty towards JT who chaired the disciplinary hearing – this was not appropriate due to a lack of impartiality. An independent Chair should have been brought in to handle the disciplinary hearing and assess the evidence;
- The point of lying and or misleading JT was never put to Mr Kane at the hearing;
- There were inaccuracies in the meeting minutes;
- The allegation relied on “numerous occasions” whereas there had only been two;
- The appeal process fell short of what should be conducted by a reasonable employer – no consideration was given for the date discrepancy having an impact on the evidence; and
- The inconsistency of treatment with other employees who had done the same or similar thing while off sick.
Lessons to be Learnt
- Always conduct a fair, reasonable and thorough investigation into any allegation of misconduct;
- Detailed notes and/or statements must be taken to record the investigation;
- The allegation must be specific to the circumstances;
- Consider using an independent Chair to reinforce impartiality;
- All evidence being relied upon must be disclosed to the Employee; and
- Assumptions about an employee’s ill health and its effects should not be made without the backing of medical evidence.