Going to the pub while off sick from work is not a sackable offence, a judge has ruled in the case of an ill driver who was fired after being caught out at a social club by his boss.
Judge Andrea Pitt ruled that unless driver Colin Kane, 66, from Tyne and Wear, had been specifically forbidden from socialising while ill by his employer, Debmat Surfacing, he was free to do what he liked.
Mr Kane was suffering from a serious lung condition at the time and told bosses he spent the day ‘in bed with his chest’ when in fact he was seen out smoking and drinking.
Now the driver is in line for compensation after winning a case for unfair dismissal.
The hearing in Newcastle heard that Mr Kane had worked as a driver for the company, which specialises in tarmacking and paving, since 2012.
Mr Kane had suffered with chronic obstructive pulmonary disease – a condition which causes breathing difficulties and mainly affects smokers – for several years, the tribunal was told.
Judge Andrea Pitt (pictured) ruled that unless driver Colin Kane, 66, from Tyne and Wear, had been specifically forbidden from socialising while ill by his employer, he was free to do so
As a result of his illness, he was absent from work for periods of time.
On March 9 2020 he called in sick. But that afternoon his colleague Contracts Manager Shaun Johnson spotted him outside a social club close to his workplace in Ryton.
Mr Kane’s boss said he then called the sick driver who told him ‘he had been in bed all day with his chest.’
The tribunal heard his bosses then held a meeting with Mr Kane where they told him he had been seen several times at the social club drinking alcohol and smoking.
At the meeting Mr Johnson – who spotted Mr Kane out – said to him: ‘Surely if you had been unfit for work and on antibiotics, you shouldn’t be in the pub.’
Mr Kane responded saying he had only been there for a bit and saw nothing wrong with that.
Managing Director David Buggy commented that: ‘I am not comfortable that you think it is ok to go to the pub when not fit for work.’
Debmat Surfacing in Tyne and Wear (pictured), which specialises in tarmacking and paving
The tribunal was told the company launched disciplinary action against Mr Kane for dishonesty and breaching company rules.
During that process Mr Kane admitted going to the social club for 15 minutes on one occasion and for 30 minutes on a second occasion.
At a disciplinary meeting, the other Managing Director at the company, John Turner, said to Mr Kane: ‘I wouldn’t expect a member of staff who is too ill to be at work [to be] out on the drink. Do you think it’s reasonable?
‘I phoned you on Tuesday to see how you were, you didn’t answer. When you called me back later on. I asked how you were.
‘You informed me you’d been in bed all day and had just gotten up, yet this is one of the days that you were seen in the Club, is that correct?’
Mr Kane denied being at the club on the day he was called. However, he was fired in July 2020.
In a letter to him Mr Turner said he had been found guilty of gross misconduct for ‘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.’
However, Judge Pitt found the investigation into Mr Kane was flawed, in particular the company’s claim Mr Kane had been rung on the Tuesday rather than the Monday.
Upholding his claim of unfair dismissal, she pointed out that the company’s rules do not prohibit employees from socialising while off sick.
‘It was put to (Mr Kane) he should not be in a public house because he was absent through ill health,’ she said. ‘There is nothing in the disciplinary procedure prohibiting an employee from acting in this way.
‘It is not clear the exact nature of misconduct of which the claimant was found guilty.
‘Questioning revolved around his attendance at the Social Club, and indeed the letter from Mr Turner stated he was dismissed because he was attending the premises 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.
‘There is no rule [Debmat] can point to, which says that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness.
‘[The company] made a gross assumption, without evidence, the claimant should not be at the Social Club because of the nature
of his condition.
‘There is no rule Debmat Surfacing can point to, which says an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness,’ she said.
She added: ‘It was put to Mr Kane that 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.’
Judge Pitt ruled the phone call had taken place on the Monday and that this was a ‘serious error’ on the part of his bosses.
A further hearing will take place to determine the amount of compensation MR Kane will receive.