A recent employment tribunal case has thrust an established, yet sometimes controversial, issue into the spotlight: whether socialising on sick leave warrants dismissal.
The case involved an employee who suffered with a lung condition, for which he took a period of sickness absence. During his absence he was spotted at his local pub, drinking and smoking. The employer investigated the allegations against the employee, making various errors when doing so. These included:
- appointing an investigator who had made allegations against the employee;
- misleading the employee during the disciplinary interview;
- inaccurately recording events relating to the incident;
- placing reliance on a photo without investigating its origins, veracity or the date on which it was taken; and
- failing to explain why it had taken no action when similar allegations were made against another employee.
Following its ‘investigation’, the employer dismissed the employee for ‘serious misconduct’. The employee then brought an unfair dismissal claim and won.
There has been significant media coverage debating this judgment; however, on an analysis of the facts, it wholly aligns with previous case law. Employers must properly investigate the merits of each case before dismissing an employee seen socialising while on sick leave. Not all medical conditions will leave a person bed-bound and, for some, getting out of the house can be an essential part of recovery. It is important that an employer explores all of this before jumping to conclusions about the employee’s dishonesty. In the present case, the employer had failed to gather any medical evidence and instead made 'gross assumptions' about what the employee’s condition prevented him from doing.
There will of course be cases where it is tempting to assume deceit. Such as where an employee is caught playing golf while on sick leave for back pain or, as in one surprising case, an employee being featured in the local paper for scoring a century in the village cricket match while off sick for severe dysentery. However, even if the allegations against the employee appear damning, this is no reason to shortcut the investigative stage of the disciplinary procedure.
The tribunal can exercise its discretion to reduce an award of damages, to take account of:
- an employee’s contributory conduct (ie they brought it on themselves); or
- to reflect the percentage chance dismissal would have resulted even if a fair procedure had been followed, (and did indeed make a 25% reduction in this case).
The fact however remains that, without conducting a proper investigation into the allegations, an employer remains exposed to a finding of unfair dismissal.
To avoid potential liability for unfair dismissal, employers should properly investigate the matter to reach a well-substantiated conclusion that dismissal is reasonable in all the circumstances. This includes:
- ensuring different people, if possible, act as investigator and decision-maker, and there is no bias at the investigation stage;
- gathering independent witness evidence; and
- seeking medical evidence with respect to what the employee’s illness prevents them from doing.