· Comment

Sick leave: The skive’s the limit?

Sick leave has been a sensitive issue for many years but a recent employment tribunal case reflected the risks that adopting a pre-judged approach can take.

The case – Mr C Kane vs Debmat Surfacing Ltd – involved a driver for the company claiming unfair dismissal in pursuant to Section 98 Employment Rights Act 1996. The driver had taken periods of absence due to ill-health, including from chronic obstructive pulmonary disease.

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

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What followed saw company management call the claimant, who claimed he had “been bad in bed all day with his chest”, denying the 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, before the company launched an investigation on 23 March for “dishonesty and breach of company regulations”.

In interview and subsequent correspondents, the company eventually suggested if the driver had been “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 also 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.”

Even so, the judge concluded there would have been just a 25% chance of the claimant being dismissed if 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 being seen by their bosses in public, whether down the a pub or other social setting rather than being tucked up in bed, is going to cause them grief.

Even so, it is also a reminder 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.


Jules Quinn is partner at King & Spalding