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Going to the pub while sick is not a sackable offence

Kate Palmer - Peninsula UK

A tribunal judge in Newcastle has ruled that a driver who was fired after being seen at a pub having called in sick was unfairly dismissed.

Colin Kane had been seen out at a social club near his workplace drinking alcohol and smoking on March 9th last year. The company he worked for launched disciplinary action against him for dishonesty and breaching company rules, and he was fired in July 2020 for gross misconduct.

Judge Andrea Pitt uphold Mr Kane’s claim of unfair dismissal, pointing out that the company’s rules do not prohibit employees from socialising whilst being off sick.

Kate Palmer is HR Advice and Consultancy Director for Peninsula UK. She says “This case highlights the need for employers to have robust disciplinary procedures; dismissing an employee for breaching a rule which they were not aware of is risky when it comes to establishing a fair dismissal. The dismissal in this case was unfair for a combination of reasons, including an inadequate investigation which is another essential part of fairness; decisions should not be based on assumptions.

“From a wider perspective, employers should not jump to a conclusion that an employee is ‘pulling a sickie’ because they are seen socialising when on sick leave. The specific reason for the absence must be considered because, in some cases, GPs may advise that the employee undertakes activities during sickness absence. It is clear from this ruling that being too sick to work does not mean the employee must necessarily be confined to their house.”

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