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In the recent case of Mr C Kane -v- Debmat Surfacing Limited, the Newcastle Employment Tribunal held that Mr Kane had been unfairly dismissed for visiting

By Natasha Smith, Senior Associate

 In the recent case of Mr C Kane -v- Debmat Surfacing Limited, the Newcastle Employment Tribunal held that Mr Kane had been unfairly dismissed for visiting his local social club whilst he was signed off sick.

Whilst on the face of it, this decision is likely to cause concern for employers who might think the employer in this case was fully within their rights to dismiss the employee for this reason, upon closer inspection of the detailed reasons provided by the employment judge, even in cases such as this, employment law is not quite as clear cut as it appears.

Background facts:

Mr Kane had been employed by the company as a driver for seven years. He suffered from Chronic Obstructive Pulmonary Disease (COPD) and had periods of absence due to ill health.

On the first day of sick leave on 9 March, a manager claimed to have seen Mr Kane outside a social club close to work. He informed one of the managing directors, who when speaking to Mr Kane later that day by phone, was told that he had ‘been bad in bed all day with his chest’.

Mr Kane attended an investigation meeting with the manager who had seen him at the social club. It was put to him that he had been seen several times at the club drinking alcohol and smoking and that he had told the boss that he had been in bed ill all day. Mr Kane responded he had only been there for a bit and saw nothing wrong with it.

Following the investigation, Mr Kane received a letter stating that his actions were considered inappropriate (due to his ill health, particularly given his additional vulnerability during the pandemic) as well as a breach of the company’s disciplinary rules. It was decided disciplinary action would take place once a 12-week period of shielding ended.

When the company wrote confirming his requirement to attend a disciplinary hearing, Mr Kane was not provided with evidence to support the allegation in the letter which stated ‘this action is being considered with regards to [your] dishonesty and breach of company regulations’.

The disciplinary hearing was conducted by the Managing Director who had made the phone call. During the hearing, Mr Kane was told he had been seen at the social club several times during the first week of absence. Mr Kane accepted he had been there once for 15 minutes and another occasion for 30 minutes. However, he denied having been there on 9 March.
The managing director referred to a photograph of Mr Kane drinking outside the club but this was not presented to anyone, either before or during the disciplinary hearing, or at the Tribunal.

Following the hearing, Mr Kane was dismissed and the letter confirming his dismissal set out the allegation, ‘that he was attending the pub on numerous occasions, consuming alcohol and smoking whilst being signed off on the sick with chronic lung disease/chest infection and claiming to be at home in bed’. The company concluded Mr Kane was guilty of a serious and wilful breach of the company’s rules, which were considered gross misconduct.

Mr Kane appealed against the decision on the basis:

He had been told the phone call was made on Tuesday (10 March) when, in fact, it had been made on Monday (9 March); and
Other employees had also visited the club whilst on sick leave (which the other managing director was aware of).

The appeal was rejected and Mr Kane took the matter further. At Tribunal, the judge was particularly critical of the employer’s investigation process (or lack thereof) and this case serves as an important reminder to employers of all sizes of the necessity to carry out a fair and reasonable process before dismissing employees for gross misconduct.

The judge found the investigation was not one that would be carried out by a ‘reasonable employer’.

The numerous failings in the disciplinary process identified by the judge included: 

* The manager who held the investigatory hearing was a key witness to the allegation.

* No witness accounts were obtained and/or provided to Mr Kane.

* No photograph was provided to Mr Kane or presented as evidence at the Tribunal.

* One of the allegations was that Mr Kane had lied to the managing director – this is the same managing director who conducted the disciplinary hearing. Whilst it is a small business, there were two managing directors available and a reasonable employer would have found a person independent of the allegations to conduct the hearing.

* The date of the phone call being made to Mr Kane (to support the allegation that Mr Kane had lied to the managing director) was incorrect.

* Whilst the company made reference to Mr Kane being seen at the social club on several occasions, evidence of one occasion was discussed and/or relied upon.

* The letter confirming Mr Kane’s dismissal did not state the exact nature of the allegations.

* There is nothing in the employer’s disciplinary policy that sets out Mr Kane’s actions would be considered unacceptable conduct when an employee is off sick.

* The company had made a gross assumption that Mr Kane should not be in the social club (because of his ill-health) and because he had been advised to shield. In fact, the advice to shield had come after the date of the allegation and the company had not obtained any medical evidence regarding Mr Kane’s medical condition.

The above list highlights the importance of employers ensuring that a full, thorough and objective disciplinary process is followed, even when an employee appears to be guilty of obvious misconduct. The law states that where an employer dismisses an employee, the burden is on the employer to establish a fair reason for the dismissal and also, that it acted reasonably in treating the conduct as a sufficient reason for dismissal.

Even though Mr Kane accepted he had been at the social club (albeit not on the date he was told the allegations related to), the judge viewed the employer’s process extremely dimly; notably criticising them for having made a numerous of assumptions about Mr Kane’s actions, without fully testing the facts. Had the investigation and subsequent disciplinary hearing been dealt with independently of the individuals that were involved in the allegations, the outcome could well have been very different.
The case will return to the Tribunal later in the year to determine the level of compensation to be awarded to Mr Kane for his unfair dismissal.

If you would like to discuss any of the above issues or any other employment matter, please do not hesitate to contact Joseph Oates on email: jmo@cooperburnett.com or Natasha Smith on email: nes@cooperburnett.com or tel: 01892 515022.

This blog is not intended as legal advice that can be relied upon and CooperBurnett does not accept any responsibility for the accuracy of its contents.

 

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July 2, 2021
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