An Employment Tribunal in Newcastle has ruled it was unfair to dismiss an employee for drinking and smoking at a social club when he was off sick. Colin Kane had been employed by Debmat Surfacing Limited as a driver for seven years. He had suffered from Chronic Obstructive Pulmonary Disease (COPD) and told his employer he was off sick with a “bad chest”.

However, he was seen several times drinking and smoking at a social club during the time he claimed to be sick. His employer believed he had been acting dishonestly and in breach of its company policies and dismissed him for gross misconduct.

This decision is a good reminder to employers that they must consider all the circumstances before they dismiss an employee for gross misconduct. Employees with more than two years’ service are protected from being unfairly dismissed by legislation and employers are expected to consider factors such as their service and their disciplinary record, before they can be regarded as fairly dismissing an employee.

In this case, the Judge also commented that the company’s rules did not prohibit particular conduct or behaviour during sick leave in their policies. For example, there was no prohibition on socialising or attending a pub when off sick. This case reinforces how important it is to ensure you have clear, well-drafted and robust disciplinary policies in place, which are implemented in practice. If there are any specific types of behaviour an employer regards as unacceptable and a reason to dismiss for gross misconduct, it’s critical to make that clear in the policy. It’s also important to ensure that staff are reminded about the content of policies and especially conduct where there is a zero-tolerance approach adopted.

Loch Associates Group recently carried out a survey on LinkedIn to ask employers if they thought the reason for someone being off sick would make a difference to what activities an employee could undertake while on sick leave. Seventy-three per cent said the reason why someone is off sick did not make a difference.

It’s important for employers to check their policies are clear on what conduct or behaviour is not acceptable when someone is off sick, while keeping in mind the necessity to consider making reasonable adjustments to that policy if someone is off sick with a disability.

Pam Loch, Employment Law Solicitor and Managing Director of Loch Employment Law.