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Employment Tribunal Ruling Reminder to Employers on Conducting Investigations

A recent employment tribunal case has highlighted the importance of conducting proper investigations into allegations of misconduct and managing the evidence, even when the issues seem obvious.

Perhaps even more importantly, as an employer, you should ensure that you have appropriate employment policies in place to cover situations which give rise to sickness absences and any protocol which your employees should be following if they are signed off sick from work. Not new guidance, but a useful reminder!


The Case: Kane v Debmat Surfacing Limited

Mr Kane was employed by Debmat Surfacing Ltd (’Debmat’) as a driver. He suffered from chronic obstructive pulmonary disease (‘COPD’) for several years which caused him to have several periods of absences due to ill-health. He was signed off from work in March 2020.

However, he was spotted at a Social Club by another employee of Debmat, Shaun Johnson, on the first day of his sickness absence. Mr Johnson contacted John Turner, a Managing Director of Debmat. Mr Turner then contacted Mr Kane by telephone to ask where he was. Mr Kane later admitted that he was in the pub for 15 minutes.

My Kane was informed by Debmat that he would be investigated for dishonesty and breaching company regulations. A disciplinary hearing was held on 6 July, where Mr Kane was dismissed for a breach of trust and dishonesty.

A letter dated 7 July 2020 followed and set out that Mr Kane was guilty of gross misconduct as a result of the allegation that he was consuming alcohol and smoking whilst signed off sick from work with a chronic lung disease.


The Outcome

At a hearing, the Employment Tribunal found that Mr Kane was unfairly dismissed as Debmat had failed to conduct a reasonable investigation into the allegations.

In particular, there was a reference to a photo of Mr Kane at the social club but this was never produced as part of the investigation or at the hearing. There was no actual investigation into the allegations but rather just a meeting between Mr Kane and one of the Managing Directors.

It was suggested that Mr Kane had been seen at the social club on numerous occasions but no evidence was produced. There was also nothing in the Debmat disciplinary policy and procedure that prohibited Mr Kane from going to the social club and socialising in whichever way he wanted to.


For more information or advice on managing employees, employment policies or training, please contact one of our specialist employment lawyers directly. Alternativly you can call 0115 9 100 200 or click here to send an email.

Posted on July 27, 2021

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