There are times when I read a judgment of a tribunal or court and think that if only the employer had carried out a thorough process, the outcome would have been very different. A recent case from the Newcastle employment tribunal is one such instance.
The known facts are simple enough: the employee, Colin Kane, calls in sick, is seen in the pub and is subsequently dismissed. Given these facts, the finding of unfair dismissal may at first seem surprising, but it's a trap that employers fall into all too often. The trap is equating sickness with a requirement that the employee stay in bed. Whilst that's sometimes the case, in other cases staying in bed is exactly the opposite of what the doctor has ordered.
Consider for example an employee signed off with anxiety and stress, who is subsequently seen playing golf, or seen on a beach holiday. The game of golf or the beach holiday may be exactly what the employee's doctor has recommended and does not mean that the absence is not genuine.
Or consider an employee with two part-time jobs, with them being signed off sick from one (say a manual job) but not from the other (a desk based job). The reason behind the absence from one job (say a physical injury) may explain why the employee is signed off sick from one job but not the other.
The simple way for employers to avoid this common pitfall is to avoid making assumptions and to investigate the matter thoroughly, even where the facts seem obvious. That's exactly what Mr Kane's employer failed to do. Rather, the manager here made this fateful assumption: "I wouldn't expect a member of staff who is too ill to be at work out on the drink."
Reading Mr Kane's case, I can't help but think that had the employer properly looked into matters, either they would have concluded that Mr Kane had done nothing wrong or, they would have been able to satisfy the employment tribunal that a reasonable investigation had been carried out and that the dismissal had been fair.
Judge Pitt ruled that Debmat 'made a gross assumption, without evidence' that the claimant should not be at the Social Club because of the nature of his condition and stated that the disciplinary procedure did not prohibit this.