June 11, 2021

How a man found at the pub when he was off sick won an unfair dismissal case

An employee who was spotted drinking outside the pub when he was off sick has won his unfair dismissal case. On first pass it sounds unbelievable, but the devil is in the detail.

At first glimpse, the case of Colin Kane and his former employer, Debmat Surfacing, makes a great headline. Man off sick with chronic obstructive pulmonary disease spotted smoking and drinking outside a bar in working hours, wins his unfair dismissal case. But as always with employment cases that make the headlines, the devil is in the detail.

Debmat’s case ran aground because they overlooked some of the basics of a fair process. There was no proper investigation, and nobody made notes of the statements that were taken. They also made a lot of assumptions about Mr Kane’s health: it’s not the employer’s place to determine unilaterally that ‘off sick’ has to mean confined to the home, nor that going out might delay a return to work.

Indeed, they went further and equated all this to ‘misconduct’ without checking whether their disciplinary policy made any such mention. They also pointed out to him that he should have been shielding, without checking the dates against government advice at the time, or indeed asking him whether he had received a shielding letter at all.

Fatally, Kane’s employers muddled up witnesses and ‘officers’ in the process, with the person hearing the disciplinary having to make a decision on an allegation he’d raised himself. The judge acknowledged that these things can be difficult in a small business, but said that a reasonable employer would have appointed someone impartial and external to conduct the disciplinary – one of the two managing directors heard the appeal.

The lessons for Debmat are hard, but clear: avoid putting your own views into play before you’ve checked the position with the incident and your own policies. Leave no stone unturned when seeing who else can give you information, and make sure the case is heard by someone who isn’t a witness or has had a hand in formulating the allegations.

Moorepay HR Services customers have access to our 24 hour advice line and can be taken through the process step by careful step. All Moorepay customers can book one of our on-site HR Consultancy teams to ensure a robust and impartial hearing.

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About the author

Audrey Robertson

About the author

Audrey Robertson

HR Consultancy & Insurance Manager, Audrey, has a strong background in HR, Employment Law and related insurances in a career spanning over 15 years leading teams in-house and as a consultant supporting clients across retail, education and the B2B sectors. At Moorepay, Audrey heads up the Policy & HR Consultancy team as well as the insurance claims department. With a strong commitment and investment in employee wellbeing, having studied counselling and coaching, Audrey is a qualified Mental Health First Aider and supports our staff on-site.

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