“Flawed” investigation the cause of Unfair Dismissal
A Tribunal has found that a man dismissed from his job after being seen in a social club while on sick leave was unfairly dismissed.
Colin Kane worked as a driver for a surfacing company, Debmat. On the first day of a three-week period of absence due to chronic obstructive pulmonary disease (COPD) Kane was noticed by a colleague at a social club close to the company’s base. The colleague claimed Kane stepped back into the building as if to avoid being seen.
When contacted later, Kane admitted being at the club for 15 minutes on one day and 30 minutes on another. He was then informed that the company was investigating him for “dishonesty and breach of company regulations”, being told that if he had been unfit for work and on antibiotics, he shouldn’t have been at the club. He was also reminded that given the Covid-19 outbreak he should have been self-isolating because of his vulnerability.
The company informed Kane that it saw his behaviour as breaching the company’s disciplinary rules. After a disciplinary meeting Kane was dismissed from his post, and his subsequent appeal – based on the contention that other employees had visited the club while absent from work through sickness – was rejected.
The tribunal found that the investigation of the allegations was flawed. There was no rule the respondent could point to, that stated that an employee could not socialise “in whatever way they deem appropriate whilst absent from work through illness”, and there was no exact medical evidence provided that supported the view that Kane should be subjected to disciplinary action for attending the club. No written accounts were taken, which led to confusion over dates and times; and the person who looked into the complaint initially, wrongly chaired the disciplinary meeting as well.
The tribunal also noted among other failings that the company may well have been aware that other employees in the past had visited the club when on sick leave and no action had been taken.