In the case of Kane v Debmat Surfacing Ltd, Colin Kane was employed as a driver at a surfacing company which did not have a dedicated HR department. Mr Kane has suffered from chronic obstructive pulmonary disease (COPD) for several years and had periods of absence due to ill-health.
On the first day of a three-week period of absence, Mr Kane was seen at a Social Club close to his workplace by Shaun Johnson who informed Managing Director Mr Turner. Mr Turner telephoned Mr Kane, who did not answer but returned the call shortly thereafter. Mr Turner’s account of the conversation includes the comment from Mr Kane that ‘he had been bad in bed all day with his chest.’ Mr Kane denied being in the Club on the Monday; although he accepts, he was there the following day.
The company conducted an investigation meeting for ‘dishonesty and breach of company regulations.’ After a disciplinary meeting on 6 July Kane was dismissed from his post. The employment tribunal, however, found that Debmat’s investigation of the allegations against Mr Kane was flawed.
Judge Pitt wrote in his conclusions: “I note the disciplinary procedure does not contain any clause regarding ill health, nor was there any evidence upon which they could rely, which suggested the claimant’s illness was harmed by this behaviour or his return to work delayed.”
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. The claimant did not contribute to his dismissal.”
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