10 June 2021
Is socialising while off sick from work a sackable offence?
Jo Davis, employment partner at B P Collins advises.
Many employers will have been made aware from news reports, that an employee, who was made redundant after he was seen drinking and socialising while off work through illness, has won his case at an employment tribunal. He was fired for a "breach of trust and dishonesty", according to the tribunal judgment.
Judge Andrea Pitt ruled the worker, who has chronic obstructive pulmonary disease, was unfairly dismissed; after finding flaws in the firm’s investigations and that a fair disciplinary process was not undertaken. She also said that the company’s rules did not ban staff from socialising while taking sick leave saying:
"It was…put to the claimant he should not be in a public house because he was absent through ill health...[but]…There is nothing in the disciplinary procedure prohibiting an employee from acting in this way."
Judge Pitt also added that the company had, “made a gross assumption, without evidence, [that] the claimant should not be at the social club because of the nature of his condition”.
So where does that leave employers? Each matter is different, but firms would be wise to ensure that they:
- Have a thorough disciplinary policy and procedure in place, which comply with the ACAS Code;
- Follow these procedures when they are dealing with disciplinary matters, including having an investigation, hearing and appeal, which should all be dealt with by someone not previously involved and going up the chain of command;
- Make a reasonable decision. To succeed, you only have to show that your decision was within the band of reasonable responses for an employer to reach. That is not a high hurdle to overcome and the fact that a Tribunal might not agree doesn’t mean your decision was unreasonable. A tribunal who substitutes its own decision will be exposed to an appeal.