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Going to the pub while off work sick is not a sackable offence, judge rules
9 June 2021, 07:56
A worker who was fired after being spotted drinking in a club while off work sick has won his case at an employment tribunal.
The judge at an employment tribunal said if a company had no specific rules in place preventing it, then it was not a sackable offence.
Colin Kane, 66, was fired from his job as a driver at Debmat Surfacing in Ryton, Tyneside, after he was seen smoking outside a bar while he was off work sick.
Mr Kane, who had suffered from chronic obstructive pulmonary disease (COPD) for several years, won his case after a judge found going out for a drink while ill was not against the firm's disciplinary rules.
He called in sick on March 9 last year – but that afternoon a colleague spotted him outside a social club close to work drinking alcohol and puffing cigarettes.
After being seen, bosses said they called Mr Kane who claimed ‘he had been in bed all day with his chest.’
But Mr Kane later denied being in the club on that day, although he accepted he was there the following day.The tribunal heard that at a disciplinary hearing later in March 2020, it was said that Mr Kane had been seen "several times" drinking and smoking at the club while he was sick, and was told: "Surely if you had been unfit for work and on antibiotics, you shouldn't be in the pub."
Mr Kane replied that he had only been there for a bit, and he saw nothing wrong with it, the tribunal judgment said, but a director told him: "I am not comfortable that you think it is OK to go to the pub when not fit for work."
Mr Kane then shielded for 12 weeks due to the coronavirus outbreak and a disciplinary hearing was held in July.
The driver was told there was a photo of him drinking outside the club, although he was not told when it was taken.
Mr Kane was fired for a "breach of trust and dishonesty", the judgment said.
Judge Pitt said: "It was also put to the claimant he should not be in a public house because he was absent through ill health.
"There is nothing in the disciplinary procedure prohibiting an employee from acting in this way."
She noted "flaws" in the firm's investigations and she listed ways its disciplinary procedure fell below the standard of a "reasonable employer".
She ruled: "The claimant was unfairly dismissed.
"There was a 25% chance of the claimant being dismissed if the respondent had conducted a fair procedure.
"The claimant did not contribute to his dismissal."