Fair or Unfair Dismissal? What Employers Need to Know

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On the 20th May 2021, an employment tribunal found that a man spotted at a pub while signed off from work for illness had been unfairly dismissed by his employer. The meaning of this case has been widely lost in media coverage, which has led to fundamental misunderstandings. People are confused – has it become acceptable to socialise whilst off work sick? what constitutes as unfair dismissal? and what can an employer do to avoid an unfair dismissal claim? This article aims to clarify. 

• The facts 

Colin Kane (Claimant) suffered from Chronic Obstructive Pulmonary Disease and worked for Debmat Surfacing Ltd (the Company) as a driver. He had periods of absence due to his health, and on the first day of a three-week absence, he was spotted at a local social club by a colleague. When challenged by his employer, the Claimant admitted he had made two brief visits to the social club during his time off. The Company made the decision to investigate him for ‘dishonesty and breach of company regulations’ and ended up dismissing him after a disciplinary meeting. 

• Why was the Claimants dismissal ruled unfair? 

The employment tribunal ruled that the investigations into the allegations against the Claimant by his employer were flawed. There was no rule within his contract of employment or handbook that said he was not permitted to socialise while off sick, and errors had been made with record keeping. The employer alleged that the Claimant had telephoned on the day he was seen at the social club to say that he was bedridden, but that call had actually happened the day before. To add to this, there was no medical evidence to prove that the Claimant should not have been at the club, nor that his recovery or return to work would have been delayed by the visit. 

• What is an unfair dismissal? 

Unfair dismissal is the termination of a staff member’s employment without adequate reasonable grounds to do so. GOV.UK has a comprehensive list of automatically unfair reasons for dismissal that can be explored here, it is important to avoid these – but employees can claim unfair dismissal even if you think your reasoning was fair. They may do this if they think that: 

• You acted unreasonably, e.g. not providing sufficient warning about their dismissal; 
• The reason for the dismissal was (in their opinion) unfair; or 
• You did not provide the real reason for dismissal  

If the person has ‘employee’ status and has two years of service, they have the right to take an unfair dismissal case to an employment tribunal. If they are dismissed for one of the listed automatically unfair reasons, it doesn’t matter how long they have been employed by you. They must first contact Acas, at which point an early conciliation will be offered; Acas will speak to both parties to seek a solution without advancing to a tribunal.  

What can an employer do to avoid an unfair dismissal claim? 

• Be aware. You need to be fully informed on your disciplinary procedure and what is detailed in your employees’ contracts – if you act contrary to what is written, you could be on the receiving end of a breach of contract claim. 
• Approach with sensitivity. Not all employees that are on sick notes will have illnesses that restrict them to the house; for some with mental health issues, socialisation and movement will be important to recovery.  
• Work on a case-by-case basis. While you will want to remain within the boundaries of your company policies, don’t be heavy headed. Try to understand individual cases and aim for a solution that benefits everyone.  
• Consider taking legal advice before dismissing someone. If you are in the position where dismissal is still the best option, ask a solicitor to review your actions to see if you’ve carried things out fairly, to reduce the risk of an unfair dismissal claim. 
• Make sure your employees are informed. It is their right to have access to information regarding the disciplinary procedures, and to know who they can contact if they disagree with a decision.  

If you have questions about dismissals or any other HR issues, contact us today at [email protected].