Driver sacked for drinking in club while sick wins tribunal

image copyrightPA Mediaimage captionColin Kane, who has breathing problems, was seen smoking outside a social club in March last year

A driver who was sacked after he was seen drinking in a social club while off work through illness has won his case at an employment tribunal.

Colin Kane, 66, was fired by Debmat Surfacing in Ryton, Gateshead, after he was seen smoking outside a bar in March 2020.

Mr Kane, who has chronic obstructive pulmonary disease, was found not to have broken the company's rules.

Judge Andrea Pitt ruled that Mr Kane had been unfairly dismissed.

In her judgement, delivered in May, she also found that the firm had not undertaken a fair disciplinary process.

The tribunal in Newcastle was told Mr Kane was seen by Debmat Surfacing's contracts manager Shaun Johnson outside a social club near his workplace on 9 March last year.

In a phone call, Mr Kane was said to have told bosses he had been "bad in bed all day with his chest".

He later denied being in the club on the day in question, although he admitted he was there the following day.

image copyrightGoogleimage captionColin Kane told Debmat Surfacing in Ryton, Gateshead, (pictured) he saw nothing wrong with drinking while off work'Flawed' investigation

The tribunal heard that at a disciplinary hearing in March 2020, it was said that Mr Kane had been seen "several times" drinking and smoking at the club while he was off work and was told: "Surely if you had been unfit for work and on antibiotics, you shouldn't be in the pub."

Mr Kane told the company hearing that he had only been there for a short while, and he saw nothing wrong with it.

He was fired for a "breach of trust and dishonesty", the tribunal judgment said.

Judge Pitt 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."

She noted "flaws" in the firm's investigations and said its disciplinary procedure fell below the standard of a "reasonable employer".

She ruled: "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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