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Take care when dealing with sick leave

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

Apart from annual holiday, 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

Different employers 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.

Mr C Kane vs Debmat Surfacing Ltd 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 chronic obstructive pulmonary disease.

On one such absence, from 9 March 2020 until 30 March 2020, he was seen by a manager smoking outside a social club on the first day he was off sick.

the Company 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. On the 23 March the Company started an investigation into “dishonesty and breach of company regulations”.

In interview and subsequent correspondence, the company suggested that if Mr Kane was “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.

The tribunal highlighted flaws concerning the investigation, such as no written evidence, and questions on whether a fair disciplinary procedure followed. 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.”

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

On the face of it, the case is comforting for people who are off sick and concerned that they may be seen by their bosses in public, whether down at the pub or other social setting rather than being tucked up in bed.

Employers need to be aware that a cynical or selective approach to sick leave policies – especially encroaching (or passing judgment) on an employee’s personal life can backfire.

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 just not fit for purpose.

For help and advice on matters relating to employment law, contact our expert team today.