Kane v Debmat Surfacing Ltd

An employment tribunal (ET) has held that a driver who was sacked after he was spotted drinking in a pub while he was off sick was unfairly dismissed.

To avoid a claim for unfair dismissal an employer must have a potentially fair reason to dismiss, acted reasonably in treating this reason as sufficient to justify dismissal, and followed a fair procedure. For a dismissal to be fair, the employer must show that the employee was dismissed for one of the following five permitted reasons: capability, conduct, redundancy, statutory illegality, and some other substantial reason (SOSR).

The dismissal in this case was for misconduct. All dismissals for conduct need to follow a particular route which is established by case law; the considerations that must be had pertain to whether the organisation:

  • acted reasonably in treating the employee’s conduct as sufficient reason for dismissal in accordance with equity and the substantial merits of the case
  • had an honest belief in the misconduct of the claimant
  • had reasonable grounds to sustain that belief
  • undertook as much of an investigation into the misconduct as was reasonable in all the circumstances, and
  • followed a fair disciplinary procedure.


The claimant, who has suffered from chronic obstructive pulmonary disease (COPD) for several years, had worked for the respondent for almost eight years and would take periods of sickness absence due to his illness. On 9 March 2020, during a three-week period of sickness absence, the claimant was spotted smoking outside a social club by a colleague. The respondent later called the claimant after being notified of his visit to the pub.

After admitting to being at the pub “for 15 minutes on one day and 30 minutes on another”, the claimant was informed on 23 March 2020 that he was to be investigated “for dishonesty and breach of company regulations”, noting that if he had been too ill to work then he shouldn’t have been in a pub. The claimant maintained that he did not see anything wrong with what he had done as he had only been in the pub for a short period of time.

The respondent added that the claimant should have been self-isolating due to the coronavirus outbreak and his vulnerability. On 24 June 2020, the claimant was sent a letter outlining that his behaviour constituted a breach of the organisation’s disciplinary rules, but no witness statement was included.

The claimant eventually shielded for 12 weeks due to coronavirus and a disciplinary hearing was held on 6 July 2020 which resulted in his dismissal – he appealed this decision, but it was rejected by the respondent.


The claimant won his case after the ET found that going out for a drink while ill was not against the firm's disciplinary rules and the firm had not undertaken a fair disciplinary process.

The ET noted that the claimant was fired for a "breach of trust and dishonesty", noting "flaws" in the respondent’s investigations. The court went on to list ways the disciplinary procedure fell below the standard of a "reasonable employer", as follows:

  • the disciplinary meeting should not have been held by the same person who dealt with the initial complaint (the person who made the phone call to the claimant on 9 March 2020)
  • there were no written accounts of the facts which led to some confusion
  • the respondent may have been aware that other employees have demonstrated the same behaviour in the past without taking action.

The ET judge went on to say: “The claimant was unfairly dismissed. There was a 25% chance of the claimant being dismissed if the respondent had conducted a fair procedure. The claimant did not contribute to his dismissal.”

Note for employers

It is important to note that this is an ET decision and thus does not represent a binding precedent on how organisations should deal with similar situations. However, the ET did rely on existing case law on determining the fairness of a dismissal (e.g. Burchell (procedure)) and this informed the decision on the procedural defects of the case.

It is therefore clear that the organisation lost this case mainly because of the procedural defects which meant that the employer did not gather sufficient information from which to make a reasonable decision. It worked on assumptions rather than fact.

The organisation had concerns that the employee was acting in a way that was inappropriate during sickness absence, and, from a HR standpoint, this is a genuine concern for many who pay employees in full during absences. Organisations need to have disciplinary rules which set the cornerstones for employee behaviour and, generally, organisations cannot claim that an employee has broken a rule that they did not know was in force.

What organisations need to do, regardless of the type of misconduct they are dealing with, is carry out a procedure in the way that the ET expects because, if not done correctly, it can affect the outcome of the dismissal negatively. Had the organisation carried out an investigation that a reasonable employer would have, further information could have come out which may have brought them to a different outcome i.e. not to dismiss.

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