HGV driver found drinking in social club while on sick leave was unfairly dismissed, tribunal finds

A lorry driver sacked from his job after he was spotted drinking and smoking outside a social club while on sick leave was unfairly dismissed, according to an employment tribunal.

Colin Kane, 66, was a driver for Ryton-based surfacing and aggregates firm Debmat and had suffered from chronic obstructive pulmonary disease for several years.

The condition meant he had periods of absence due to ill-health and it was during one of these that he was spotted by a colleague at a social club close to the company’s premises in March last year.

The colleague claimed that Kane stepped back into the premises “as if to hide from the wagon”.

Debmat’s MD John Turner later phoned Kane, who told him he had been in bed all day, although he later admitted to being at the social club for 15 minutes one day and 30 minutes on another.

The driver was then told he was being investigated for “dishonesty and breach of company regulations”.

At a subsequent meeting, Kane was told that if he was unfit for work and on antibiotics then he shouldn’t be in the pub, but the driver said he had not been there long and he saw nothing wrong with that.

At a disciplinary meeting led by the MD, Kane was dismissed and in a follow-up letter it said he was guilty of a serious and wilful breach of the company’s rules, which was considered to be gross misconduct.

However, an employment tribunal found that Debmat’s investigation was flawed.

Judge Pitt said there were errors in making a proper record of the allegations against Kane.

In his judgment, he said: “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.

“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.”

Among other failings, the Judge also said it was inappropriate for the MD to deal with the disciplinary hearing as he was the person who took the initial complaint: “A reasonable employer would have found an independent person to conduct the disciplinary hearing,” he said.

Judge Pitt concluded: “The claimant was unfairly dismissed. There was a 25% chance of the claimant being dismissed if the respondent had conducted a fair procedure.”