Employee Misconduct and the Great British Summer

June 23rd, 2021

Summer is finally here, the sun is shining and the football fans of England, Scotland and Wales are enjoying four weeks of almost continuous daily sport in the rescheduled Euro 2020 tournament. For many employees this happy coincidence can lead to only one destination. That is, of course, the Great British Pub and the multitude of beer gardens which have set up gazebos and big screens to enable fans to watch the games with their fellow supporters in socially distanced surroundings. What could possibly go wrong?

From an employment law perspective the answer is a resounding ‘lots’. For starters, Euro 2020 kick off times do not neatly coincide with the working week and some games will be played during working hours. Employers can therefore expect some distracted staff on weekday afternoons with plenty of furtive checking on mobile phones and internet browsers.

There is then the inevitable ‘collateral damage’ of heavy pub sessions with employees turning up in a weary and fragile state or even ringing in sick. Alcohol and sporting patriotism in the heat of summer is a potentially combustible mix and there is the added potential for employees to become involved in beery scrapes.

The best advice for employers in the majority of these situations is probably, don’t over-react, and use a sensible level of discretion in dealing with minor infractions. Conduct standards on attendance and punctuality are there for a reason but should be enforced proportionately and with common sense. A couple of hours lost productivity is probably not the end of the world for an otherwise committed and reliable employee.

More serious matters may need to be dealt with but employers should make sure that they follow their disciplinary procedures and avoid rushing to judgement. There was a recent object lesson in this in the first instance decision of Kane v Debmat Surfacing at Newcastle Employment Tribunal.

Mr Kane was employed by Debmat as a driver but had taken a number of absences from work due to his condition of chronic obstructive pulmonary disease. One on such absence in March 2020 he was seen smoking outside of a social club. On investigation, it was stated that he claimed to be ‘in bed all day that day’ but later admitted that he had been at the club during his period of absence. He was later dismissed for ‘attending the pub on numerous occasions whilst on sick’ which was considered a wilful breach of the Company’s rules.

Mr Kane’s unfair dismissal claim was upheld by the tribunal. The difficulty for the employer was that whilst it was clear that Mr Kane had been in the pub on one occasion during his absence there was some uncertainty when this actually was and there was no proof of the ‘numerous’ visits stated in the dismissal letter. It was also not clear what Company rule Mr Kane was breaching. There was nothing in writing to state that being in a social club during sick leave was an act of misconduct and there was evidence from the Claimant that others had done the same without any sanction.

Mr Kane is probably fortunate that he had a sympathetic tribunal and other judges may have interpreted the facts of this case very differently. However the case does show the importance of employers following basic procedures and not rushing to judgement where the initial optics of a situation look bad.  Certainly something for employers to bear in mind across the course of what will hopefully be a long, hot summer…  

This blog was prepared by Mark Alaszewski, Employment Solicitor at didlaw

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