Is it really true an employment tribunal judge recently ruled that it’s ok to go to the pub whilst off sick from work? Rachel Fereday, head of litigation and employment at Awdry Bailey & Douglas, offers some clarification.
The decision of an employment tribunal in Newcastle gathered a lot of media attention last week, but some of the headlines and reports were rather misleading.
Some reports, for example, suggested that the judge said it was acceptable to be at the pub whilst off sick but, as is often the case, it was not that straightforward.
In this case the tribunal held that the dismissal was unfair on the basis that there has been minimal investigation and the employer had made various assumptions that were not properly investigated or supported by the evidence.
For example, one of the employer’s findings was that the employee had been dishonest by telling a colleague that he had been in bed all day on the day he was seen at the social club, but the call turned out to have been on a different day to the day he was seen at the club.
The letter of dismissal also stated a finding that he had attended the social club on “numerous occasions” whilst being signed off sick, when in fact the evidence was only that he had been seen there once.
The employer had not properly investigated whether the employee’s health condition should have prevented him from being at the pub and made the assumption that he should not have been there because he should have been shielding, but in fact the advice to shield had not come until later and therefore should not have been a factor in the employer’s decision.
There were also various other flaws in the process and the evidence considered.
The lesson for employers should be the importance of properly investigating alleged misconduct and not jumping to conclusions or making decisions without properly considering the evidence and all relevant factors.
It is natural to feel horrified at the suggestion that someone has been in a pub whilst off sick, but for the disciplinary decision of an employer to be fair, they must undertake a reasonable investigation, properly consider the facts and evidence, not make assumptions without foundation and give the employee a proper chance to respond.
If the employer had carried out a proper investigation and determined, based on reliable evidence and a fair process, that the employee was not genuinely sick on that day, and that he had lied about it, then that may well have justified a fair dismissal and any associated claim for unfair dismissal is likely to have failed.