September 26, 2021

Volume XI, Number 269

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September 24, 2021

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“You Can Go to The Pub if Off Sick from Work, Says Tribunal” and Other Wild Over-Simplifications (UK)

This is of course not what the Newcastle Employment Tribunal said, nor is “Unless a company has specifically forbidden employees from socialising while ill they are free to do what they like” or “Going to the pub while off sick is not a sackable offence”.  However, the reality would not illuminate the pages of yesterday’s Metro to anything like the same extent, so why spoil a good story for the mere fact of its not being true?

Colin Kane was dismissed by Debmat Surfacing Limited after being seen in a pub when signed off sick and thereby breaking Rule One of Convincing Sickness Absence, i.e. that you stay at home, pale and drawn, eating only soup through a straw and in no circumstances looking as though you might be having a nicer time off sick than you would be in the office.  Kane was called into a disciplinary meeting by Debmat where he told his management that on the day in question he had been “in bed with his chest” and not even slightly in the pub or outside it smoking, dear me no.  That had been the day after, and for less than an hour.  Kane was dismissed for misconduct in allegedly lying about where he had been and signing himself off sick when he was clearly fit to get out and about and hence to work.

Deeply galling though it is for employers and colleagues, a breach of Rule One is far from automatic grounds for dismissal.  It comes up particularly in mental health cases where employees off work with anxiety or depression are seen in town outwardly enjoying themselves.  Much grinding of teeth ensues, but there is every likelihood that this is merely following doctor’s advice to think about something else for a change.  You can find a particularly extreme example of this here.

Separately, in Perry –v- Imperial College Healthcare NHS Trust in 2011 the employee was found unfairly dismissed for working for another employer while off sick from the first because while her condition prevented her from performing its duties, she was still fit to do the tasks required by the other employer.

Where going to the pub while off sick will be an issue is when it is directly inconsistent with the story given to the employer.  In 2012’s Gayle –v- City and County of Swansea, for example, the employee was covertly filmed playing squash at a local leisure centre while off sick.  Most of the reported case revolved around the privacy aspects of the filming, but the reality is that the claim was ultimately doomed by Gayle having told his employer that he had a broken ankle.

Separately, eyebrows could be raised by conduct while off sick which is incompatible with the health condition claimed but not actively inconsistent with it.  Kane had said that he was off work through obstructive pulmonary (lung) disease, but how could that be squared with his being seen outside the pub smoking?  Not flatteringly for him, true, but no one smokes believing it to be good for them and if Kane felt that he had to do so despite its presumably unhelpful impact on his condition, that was not factually inconsistent with his suffering from it, nor being too ill to work.

Which takes us to the separate question of whether a lie to your employer about something unimportant, a lie you didn’t need to tell, would by itself be grounds for dismissal.  The reports on Kane – v – Debmat do not allow us to know directly whether the Tribunal found that Kane had lied about being in bed on that day, or that there had just been confusion around the dates or times.  The Employment Judge’s ruling that Kane had not contributed to his dismissal suggests the latter, though she also found that if a fair disciplinary procedure had been carried out, there was a 25% chance that he would have been dismissed anyway.

The probable answer is that as a rule, a lie about your reason for absence represents a serious blow to the necessary relationship of trust and confidence between employer and employee.  Reversing the position, for example, it would be hard to deny the merits of a constructive dismissal claim based on an employer’s deliberate deception of the employee.  That the employee might have lied about not doing something he was entitled to do does not make that less serious – perhaps even more so, since why lie if you didn’t believe you were doing anything wrong?  The requirement then to consider whether that lie necessarily justifies dismissal will include whether the employee was very junior, how far they might be vulnerable, to what extent absolute integrity is a requirement of their role, any prior warnings, whether anything actually did or might have turned on it, etc.  And of course only a deliberate lie will count – a mis-statement of the reasons for your absence made through mistake, panic or ignorance won’t have the same legal impact.  That said, claiming that you are sick when you aren’t is hard to dismiss as any of those things, so misrepresenting your fitness to work is almost always going to constitute serious misconduct, as expanded upon here.

Back to Rule One.  This decision does not change either how strongly employers feel about the Rule or how ET’s won’t roll over on it just because the resulting decision would be good material for a headline, as here.  Tribunals will expect employers to investigate carefully both the facts of the employee’s conduct and the medical position, especially for mental health conditions where the limiting effects may be less obvious or more nuanced than those of a broken ankle on your squash game.  An employer which makes a fully understandable but nonetheless uninformed assumption around what activities are consistent with the employee’s claimed medical grounds for absence is heading for a fall.

So the ET in Newcastle did not say that you can go to the pub when off sick, either at all or, in particular, as anything new.  You have always been able to do it if it is not inconsistent with your medical condition, physical or mental, and you have never been able to do it if it isn’t. That is still the case. Cheers!

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 161
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

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