A driver who was fired after he was spotted drinking and smoking at a social club while off work due to illness has won his case at an employment tribunal. 66-year-old Colin Kane, who has a serious lung condition, was sacked by Debmat Surfacing in March 2020.
Found not to have broken the company’s policies, Judge Andrea Pitt ruled in Mr Kane’s favour and said he had been unfairly dismissed. During her judgement, she also added the firm had not undertaken fair procedures.
At the tribunal, it was revealed Mr Kane had been seen by Debmat Surfacing’s contracts manager Shaun Johnson, despite telling his boss he had been “bad in bed all day with his chest”.
During a disciplinary hearing in March 2020, Mr Kane was told: “Surely if you had been unfit for work and on antibiotics, you shouldn’t be in the pub.” However, Mr Kane stressed that he had only been there for a short while and that he saw nothing wrong with it.
Fired for a “breach of trust and dishonesty”, Judge Pitt said: “There is nothing in the disciplinary procedure prohibiting an employee from acting in this way.”
She added there were “flaws” in the company’s investigations and that its disciplinary procedure fell below the standard of a “reasonable employer”.
The case serves as a reminder that employers should ensure that they have appropriate policies in place and, even if there is a genuine belief that an employee is guilty of misconduct, the employer is expected to carry out a full and fair investigation before taking the decision to dismiss. The old-school, heavy-handed approach to a “sickie” is just not suitable.
Nalders has a dedicated team of employment law solicitors in Cornwall on hand to advise you on employment contracts generally and on any employment or commercial arrangements you’re thinking of putting in place. Contact Dale Band, Gayle McDermott, Lee Middleton or Luke Smith to discuss further on 01872 241414.