An Employment Judge has recently ruled that going to the pub while off work sick is not a sackable offence, stating that unless the employee had been specifically forbidden from socialising while off sick by his employer, he was free to do what he liked.
In this instance, the employee in question who worked as a driver specialising in tarmacking and paving, suffers from a serious lung condition, which causes breathing difficulties, and which had caused him previously to be absent from work for periods of time. His employer had been informed by his colleague that the employee had been spotted outside a social club close to his workplace drinking and smoking. His employer called him to ask how he was and there was no answer. The employee called his employer back and he told his employer that he had been in bed all day and had just gotten up. The company undertook disciplinary action against the employee for dishonesty and breaching company rules, where they informed him he had been seen several times at the social club drinking and smoking, stating that “surely if you had been unfit for work and on antibiotics, you shouldn’t be in the pub”. He was subsequently sacked 3 months later for gross misconduct. The employee did however admit to going to the social club for 15 minutes on one occasion and for 30 minutes on a second occasion.
The Judge found the investigation to be flawed, in particular the claim that the employer rang the Claimant on a Tuesday rather than a Monday, which the Judge called a serious error on the part of his bosses. The Judge upheld the claim of unfair dismissal pointing out that the company’s rules do not prohibit employees from socialising whilst off sick, also stating that it was not clear the exact nature of misconduct of which the Claimant was found guilty. The Judge added that there is no rule the employer can point to which says that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness. The employer assumed, without all relevant evidence, that he should not be out drinking because of the nature of his illness and the fact that he was signed off sick.
Many people will have their own views on whether a person should be sacked for going to the pub whilst off sick, with many calling it selfish, dishonest, and disrespectful to employers and colleagues. Many say that if you are well enough to go to a pub and drink then you should be well enough to work. This is not necessarily the case. There are scenarios which would prevent a worker from being able to attend at work due to illness/injury to undertake their day to day working tasks, but not necessarily prevent them from socialising.
It is not simply a matter of “well if they’re too ill to work, they can’t socialise or go out” attitude. An Employment Tribunal will expect an employer to follow all reasonable procedures in line with the ACAS Code of Practice and determine whether the dismissal was a reasonable response to the alleged misconduct. They must show that they had a reasonable belief of the employee’s guilt of the alleged misconduct, apply a reasonable procedure and investigation, and that the final sanction applied was reasonable in all of the circumstances. If there has been a failure to comply with the ACAS Code of Practice, an Employment Tribunal could decide that an employee has been unfairly dismissed on procedural grounds only.
Employees have employment rights, and this includes the right not to be unfairly dismissed (subject to being employed for a minimum of 2 years), and whilst off sick an employee is entitled to continue to live their ordinary life, which can include socialising. It could be argued that socialising, including going to the pub, could assist a person to recuperate, a principle accepted in relation to entitlement to paid holidays. It is now established that a worker continues to accrue holiday entitlement whilst off sick and can take holidays. Compensation is yet to be determined in the above case, and this will be based usually on the basic award, which is a fixed calculated sum based on a person’s age, length of service and their weekly pay, and the compensatory award, which is an award for loss of earnings.
Cases such as this can often turn on their own facts, but it does stand as a welcome reminder for employers that they should only seek to take action against an employee if this reflects real misconduct, rather than perhaps reacting to what they perceive to be an injustice to the business from a worker doing something which is an entirely normal part of daily life.
Written by Karen Oden