Take care when dealing with sick leave

Dealing with sick leave can be a minefield for companies, with the threat of tribunals and compensation if not handled correctly.

Apart from annual holiday entitlement, an employee might need time off work for reasons including:

  • short-term and long-term sickness, including mental health conditions
  • helping a child, partner or relative
  • bereavement
  • medical appointments
  • pregnancy-related illnesses and appointments, including IVF
  • bad weather conditions, making travelling to work difficult or impossible

Each workplace might have different rules on what they see as acceptable reasons for absence.

For this reason, every workplace should have its own absence policy, so it is important to be aware of pitfalls.

A recent employment tribunal case reflected the risks of adopting a pre-judged approach.

The case of Mr C Kane vs Debmat Surfacing Limited, which attracted a lot of media attention, involved a driver for the company claiming unfair dismissal pursuant to Section 98 Employment Rights Act 1996. The driver had taken periods of absence due to ill-health, including from chronic obstructive pulmonary disease.

On one such absence, from 9 March 2020 until 30 March 2020, he was seen by one of his colleagues smoking outside a Social Club on the first day of his sick leave. His colleague then informed one of the managing directors.

The company management called the claimant, who claimed he had “been bad in bed all day with his chest”, denying he had been in the club that day, although admitting he had the following day.

The situation was compounded on 21 March when the claimant was not able to attend work because he was shielding as directed by the NHS, before the company launched an investigation on 23 March for “dishonesty and breach of company regulations”.

In interview and subsequent correspondence, the company eventually suggested if the driver had been “unfit for work and on antibiotics, [he] shouldn’t be in the pub”, saying his actions were inappropriate and he was dismissed for a breach of trust and dishonesty. An appeal hearing took place further to his dismissal at which his appeal was rejected.

Under the law of unfair dismissal, a dismissal of an employee will be unfair unless:

  • the employer can show that the main reason for the dismissal was one of the five potentially fair reasons (conduct, breach of statutory restriction, capability, redundancy and ‘some other substantial reason’; and
  • the employer acted reasonably in dismissing the employee, taking into account all circumstances (e.g. the employer’s size and resources).

In a conduct dismissal, such as this one, an employer must follow a fair procedure and also ensure that the decision to dismiss was within the range of reasonable responses of a reasonable employer.

The tribunal questioned whether a fair disciplinary process had been followed as it highlighted flaws in the investigation process, such as not having any written evidence. The only investigation that had been carried out by the employer was speaking to the employee before the disciplinary proceedings were started. There was no corroborating evidence collected regarding his presence at the pub on the day he was off sick. The employer did not carry out a fair procedure and so the tribunal held it did not act reasonably in dismissing the employee.

The judge also made a further point stating that the employer’s disciplinary procedure did not stop an employee from going to a Social Club while absent from work due to ill-health. Crucially, and acknowledged by respondent, going to the Social Club while on sick leave was not deemed gross misconduct.

“There is no rule the respondent can point to which says that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness,” the judgment states. “The respondent made a gross assumption, without evidence, the claimant should not be at the Social Club because of the nature of his condition and because he should be shielding.”

Even so, the judge concluded there would have been just a 25 per cent chance of the claimant being dismissed if the respondent had conducted a fair procedure.

This case should remind employers that they must always follow a thorough and fair procedure before dismissing an employee. Employers must also have clear and concise sick leave and disciplinary policies which they must follow.

More generally, as many employers have seen a significant drop in sickness rates during the COVID-19 pandemic with the establishment of flexible working policies are a key factor, an old-school, heavy-handed approach to sick leave is not fit for purpose.

For help and advice on matters relating to legal employment, contact Joanna Alexiou on joanna.alexiou@mackrell.com or at 0207 240 0521

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Joanna Alexiou

Joanna Alexiou

Associate Solicitor at Mackrell.Solicitors
Joanna joined the firm’s Employment Law team in February 2020 having previously worked at another prominent firm of solicitors in the heart of London. Joanna has worked with clients from the finance, technology, arts and culture, marketing, charity and food and drink sectors.