An employee dismissed for going to the pub while off sick wins his unfair dismissal claim – have we gone too soft?

I was brought up in a way that you didn’t take time off school or work unless you’d lost a limb, or had rabies. Even then you were forced to spend the day in bed with no television or anything else that may make a day off more attractive than being in school.

Although many contracts include pay for periods of sickness absence, there is actually no provision in employment contracts allowing employees to have time off for illness and therefore any such absence is strictly speaking a breach of contract, so you’d have thought that rules and norms regarding this would be quite strict.

Not so! Well, not any longer, anyway, and in this article I’ll explain a couple of Tribunal cases that substantiate this view.

In the recent Kane v Debriot Surfacing Ltd case reported last week Mr Kane won his Tribunal claim for unfair dismissal after he was dismissed for going to the pub on two separate occasions, where he was witnessed drinking alcohol and smoking, when he was absent from work through illness. Although I have referred to him smoking, clearly he is free to do so but it is relevant as he had called in sick due to his serious lung condition of Chronic Obstructive Pulmonary Disease (COPD) – as he had done several times previously. When phoning in sick he explained that he needed to spend the day ‘in bed with his chest’ so I think many people would raise an eyebrow to his smoking and going to the pub.

I suspect most will be surprised by this Tribunal outcome and view a dismissal to be justified in such circumstances, however Tribunal findings such as this seem to be more frequent which suggests we have moved on significantly from the old test of reasonableness under English law i.e. whether ‘The man on the Clapham Omnibus’ would say Mr Kane acted reasonably and therefore didn’t deserve to be dismissed.

The Tribunal were clear that Debriot had ‘not acted reasonably’ in dismissing Kane. This was partly because they didn’t follow a reasonable investigation and disciplinary process, which is a good reminder that even if a dismissal seems like a slam dunk, employers still need to follow the correct processes. It is unclear if a better process would have altered the Tribunal outcome, we can only hope it would have so common sense would prevail.

The moral here is to take advice from HR regarding any tricky employee related issues. This was especially relevant in the Kane case as COPD is likely to be considered to be a disability, which may significantly increase the compensation award. Remember that the definition of a disability is quite general and many conditions would qualify, meaning literally millions of people can potentially make a claim to a Tribunal for disability discrimination even if they have less than 2 years’ service. Employers should also be cognisant of the fact that compensation for this, including for loss of earnings due to the dismissal, is uncapped unlike with Unfair Dismissal claims.

According to the CIPD (www.cipd.co.uk) the definition of a disability is:

• A physical or mental impairment which has a substantial long term effect on his or her ability to carry out normal day to day activities.

As you can see this is a very broad definition that many people would fall within.

Although moving off the sickness absence subject slightly for a minute, I am reminded of a disability case from a few years ago that many felt also didn’t pass the ‘Clapham Omnibus’ test. It concerned the legal requirement to make reasonable adjustments for disabled employees or those applying for roles in a company.

A severely disabled man applied for a role selling radiator covers. The job entailed driving to potential customers’ houses, demonstrating then selling the company products. The disabled applicant could not drive due to his disability, would not be able to lift the heavy wooden units out of the car, carry them to the house, or demonstrate their use. He was, however, an experienced salesperson.

He wasn’t given the role as the employer felt his disability meant he clearly could not fulfil the requirements of the job. The applicant took the company to Tribunal for disability discrimination, where the judge found that the company had discriminated against him as they had not considered how he could have performed the role if they had provided him with reasonable adjustments to the role as per the legal requirement – which they felt included supplying a support employee to drive the applicant to customers’ houses, carry the products inside and demonstrate them to customers so the applicant could then follow the sales process.

The point of including this, in some ways irrelevant, case in the article is as another reminder that even seemingly obvious decisions can prove to be tricky so HR should always be consulted if an employee issue seems out of the ordinary.

Anyway, back to absence cases. Over the years attitudes, and Tribunal decisions, have evolved to be far more accepting of people being absent from work through illness and not having to be confined to bed for the whole period but, unless I am now a dinosaur out of touch with right and wrong in modern society, the above Kane decision does seem to take the biscuit!

Whether we like it or not though, the legal and also the accepted best practice approach to how people need to act when off sick is now that if an individual is too ill to come in to work that does not mean they are too ill to carry out other functions of normal life such as shopping, sport or even – as you will see below – going on holiday!

Charting this evolution, I remember receiving a phone call early in my HR career from a manager apoplectic with rage because one of his staff had called in sick but had been seen shopping in a local supermarket and apparently did not look ill. He had rushed to the supermarket to confront the employee and called me from outside asking for advice about how to tackle the individual as this was so unacceptable.

Obviously I advised him to go back to the office and have a quiet word when the individual returned to work about how, of course if he needed to purchase medication or urgently needed food he is not required to remain housebound, but he may wish to consider how this looked to people who saw him…….

That manager’s view was not unusual at the time and it was still expected that if you are off sick you stay in bed all day. Either official or unofficial surveillance of staff on the sick was common.

Whereas now we look at such surveillance as a clear breach of various rights including the right to privacy, family life etc back then it was a grey area. I am glad that has changed as there needs to be trust between employers and employees and that does not include spying on them! If that results in the occasional person getting away with skiving in my opinion that is a price worth paying when compared to the improved employment relationship.

This more liberal approach then developed further regarding whether an individual off sick can do things other than supermarket shopping, and a couple of Tribunal cases I remember tested this. Many of us were very surprised when judgements suggested it is acceptable for allegedly sick employees to carry out leisure activities when off work through illness.

The first case concerned an employee who was dismissed for going to a theme park while self-certifying that they were too ill to work, and the second was somebody signed off work for a month who decided to go abroad on holiday with friends for two weeks, while receiving full pay through the company’s sick pay scheme.

On a personal level I remain uncomfortable with both of these actions by employees but both individuals won their Tribunals and received compensation for unfair dismissal, with the judges establishing the principle that employees can be too ill to work but well enough to do other things, including leisure activities.

At Tribunal the first employee claimed they needed to get out of the house and do something enjoyable to help with their state of mind, which would help their recovery. The second claimed that two weeks relaxing in the sun aided their recovery and would have enabled them to return to work sooner and in a better frame of mind. This employee was able to provide a letter to the Tribunal from their doctor stating that they weren’t fit to work but that, in the doctor’s opinion a trip away in the sunshine would help their recovery. Hmmmm.

The ‘progress’ continued and a few years ago led to people being able to claim back days holiday if they are ill whilst on holiday. Again, many were unhappy about this but in a Tribunal case that went all the way to the European Court of Justice the ECJ ruled that employees who are ill whilst on holiday can in fact claim extra holiday for the period they were ill.

They justified this judgement by clarifying that the purposes of the two types of leave are very different i.e. the purpose of sickness absence is to recover from illness whilst the purpose of holiday is rest and relaxation. Therefore it is perfectly reasonable for employees to re-take these holidays to enable them to rest and relax. All very clear and reasonable, but it somehow doesn’t sit right does it?

I have been asked to advise on numerous cases where an employee has been abroad with family or friends but has returned and said they were ill for a few days so would like to self-certify for that period and take the holidays again at some point later in the holiday year. My advice has not been popular! Some more brazen employees have even tried to do this annually but we were able to put a stop to that by managing it as a ‘pattern’ of absence.

However, the reality is that if an individual is ill whilst on holiday they are entitled to receive those holidays back to use at a later point. I must admit I have always felt that although perfectly legal this is a little barefaced and found it difficult to do my professional duty and justify to managers that their team member is permitted to do this.

To help with matters such as this it is so important to have an absence policy so the employer can make expectations clear and enable the organisation to manage people accordingly as there are numerous ruses that unscrupulous employees sometimes try, and without a policy they can quite legitimately claim they were not aware of the requirements. 

186hr can supply a CIPD approved absence policy from £100 plus vat.

As you will see from this article, absence management is one of the areas where the scales have tipped massively in favour of employees and it can be tricky for employers to manage in a way that is supportive to individuals but also ensures the business does not suffer. At 186hr we are able to advise on all aspects of absence management and provide CIPD approved model letters for all circumstances that can be adapted to employer’s needs. If you’d like to discuss this further please contact us

Alternatively you may wish to contact Acas at www.acas.org.uk for general advice, although they are likely to steer you towards one of their management training courses which, while good, are more expensive than ours and are quite general rather than being tailored to the specific needs of your organisation. All half day courses from 186hr are run at your premises by a highly experienced, highly CIPD qualified senior HR professional and cost £595 per course for up to 12 people, or £995 for 2 courses run on the same day. For more details please either see our website www.186hr.co.uk or contact us

If you need further convincing that managers have a duty both businesswise and morally to handle sickness issues well, it has been shown that if an employee suffers significant work-related stress it knocks, on average, 3 years off their life expectancy so this issue really should be managed carefully.

The final point I’d like to cover today is what happens regarding pay if someone is off sick during their notice period. This came up with one of our customers recently when one of their employees, who had been signed off work long term, resigned,

You’d think that this would be a straightforward subject and the answer would be that the normal sick pay rules apply, and if the company operates an SSP scheme only then just SSP is payable. However, please be aware of a legal requirement that mainly affects SMEs – for those companies who have statutory (unenhanced) notice periods for both employees and employers, even if your policy is to only pay SSP for all absences, absence during the notice period when an employee has given notice must be paid in full.

I have no idea why this is the case, it seems to be an anomaly but employers need to be aware of it so they can avoid a messy and time consuming complaint or claim once the individual has left.

Some employers specify that even if they have a generous sick pay scheme, only SSP is paid during the notice period. I have seen this in several employment contracts and there are various options for employers to consider regarding contractual sick pay terms.

If you would like to review or introduce employment contracts or alternatively ‘Statements of Employment Particulars’, as legally required of all employers, please contact us. We have fully legally compliant documents that are reviewed annually by an employment lawyer so you can be sure they will meet your needs, along with costing significantly less than if you engage a solicitor to do this for you.

If you would like to discuss absence management, training, contracts, or any other HR issues further please contact us