The recent Employment Tribunal case of Kane v Debmat Surfacing Ltd has gained much attention after an employment judge found Mr Kane was unfairly dismissed, despite him being spotted smoking and drinking while on sickness absence.  While not being a reported case, it does provide some useful guidance.

Mr Kane suffered from a lung condition for which he took a period of sick leave.  On his first day of absence, Mr Kane was spotted in a local pub by a colleague.

The employer investigated and ultimately dismissed the Claimant for serious misconduct.  However, the Employment Tribunal found that the disciplinary process was severely flawed and made a finding that the Claimant had been unfairly dismissed.

Factors which contributed to the Tribunal’s finding were the following:

• The employee who made the allegations was heavily involved in the investigation process.
• The employer failed to adequately record witness evidence obtained.
• The employer relied on a photograph of the Claimant in the pub but did not advise the Claimant of its origin, i.e. who took it and when.
• The employer exaggerated the allegations against the Claimant, stating that he had been seen on ‘numerous occasions’ when in fact he had only been spotted once.
• The employer relied on the Claimant’s ill health and made assumptions about it, without making further enquiry.

As well as the heavily flawed process, the Tribunal also found that there was nothing in the employer’s disciplinary procedure which prevented an employee attending the pub while on sick leave.  It found that there was no rule that the employer could point to to say that an employee could not socialise while absent through sickness.  The employer made a gross assumption without evidence that the Claimant should not be socialising.

The case highlights some very important points.  Firstly, not all medical conditions require employees to be bed bound, and despite being unfit to work, an employee may be perfectly capable of engaging in social activities which do not worsen their condition.  Indeed, in cases concerning mental health, social activity could well be helpful in assisting the employee.

Secondly, it is imperative that an employer conducts a full and thorough investigation.  This includes clearly documenting the steps taken and the information attained.  In this case, it was also appropriate to obtain medical evidence to establish what the Claimant could and could not do while off work.

Finally, a person who is a witness to a disciplinary allegation should not be involved in the disciplinary process in any way.  There is significant risk that that person would be incapable of remaining impartial and providing the employee with a fair chance to resist the allegations against them.