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09th Jun 2021

Going to the pub while off work sick is not a sackable offence, judge rules

Kieran Galpin

It’s a fine balance

We have all been there, rolling over in the morning and thinking how you would rather be enjoying the sun in a beer garden somewhere. For most of us, the angel wins, and the devil remains silent, but the same cannot be said for 66-year-old Colin Kane.

Mr Kane has suffered from chronic obstructive pulmonary disease (COPD) for several years. On March 9th of last year, Mr Kane phoned in sick to work but was later seen smoking outside a pub near work. Rule number one of ditching responsibility, don’t do it near what you’re avoiding.

He was later fired for a “breach of trust and dishonesty”. At a disciplinary meeting, Kane admitted to drinking at the pub the following day but continued to deny that he was there on the day of calling in sick.

“Surely, if you had been unfit for work and on antibiotics, you shouldn’t be in the pub?” they asked at the disciplinary meeting. Mr Kane insisted that he saw no issue with it, to which a Director said: “I am not comfortable that you think it is OK to go to the pub when not fit for work.”

Mr Kane decided to take the matter to court. Judge Pitt had the following to say:

“It was also put to the claimant he should not be in a public house because he was absent through ill health. There is nothing in the disciplinary procedure prohibiting an employee from acting in this way.”

She concluded by saying that the firm’s investigation had numerous flaws and fell below the standard of a reasonable employer. She ruled in Mr Kane’s favour and stated that the claimant was unfairly dismissed.

As beer gardens begin to open back up, perhaps wait until you finish work before strutting off to the pub. Judge Pitt stated that if the firm had made a reasonable and fair case, then there would have only been a 25% chance of the claimant winning. Mr Kane was lucky: you might not be.