Employment Tribunal decision in Mr Colin Kane -v- Debmat Surfacing Limited  – a reminder to employers to follow a fair disciplinary procedure to avoid unfair dismissal claims

Claim Summary

Mr Kane recently brought an unfair dismissal claim in the Newcastle Employment Tribunal against his former employer, Debmat Surfacing.  In summary, Mr Kane was known to suffer from chronic obstructive pulmonary disease and was absent from work due to ill-health between the period 9th March 2020 until 30 March 2020.

On his first day of sickness, 9 March 2020, he was spotted outside a social club, drinking, despite informing his employers he had been in bed all day due to his chest. He was called into a disciplinary meeting and later dismissed for misconduct due to lying about where he was during his sick leave and signing himself off as sick when he was clearly fit to work, given the fact he was seen drinking at the social club.

Employment Tribunal Judgment

Employment Tribunal Judge Andrea Pitt in her recent judgment handed down in May 2021, held that there were significant flaws in the employers’ investigation into Mr Kane’s conduct and also held that the disciplinary procedure followed fell “…below the standard expected from a reasonable employer”.

On this basis, Judge Andrea Pitt found that Mr Kane had been unfairly dismissed. She however reduced the compensation award payable to Mr Kane, to reflect the fact that had Debmat Surfacing Limited carried out a fair disciplinary procedure, there was a 25% chance of Mr Kane being dismissed due to his conduct.

A Polkey Reduction

The reduction in Mr Kane’s unfair dismissal compensation award, is known as a “Polkey” reduction, after the High Court decision in Polkey v AE Dayton Services Limited. A Polkey reduction reduces the compensatory award made to an employee in a successful claim for unfair dismissal, to reflect the likelihood that there would have been a fair dismissal in any event. It is usually expressed as a percentage reduction.

These reductions are within the employment tribunal’s discretion and may be significantly higher than the 25% reduction in this case. The tribunal can in fact reduce the compensation award by up to 100%, where the evidence before the tribunal supports such a conclusion (although such a reduction is rare).

The Lessons for Employers

This case is a key reminder to employers that an employee (with a minimum of two years continuous service) has a statutory right not to be unfairly dismissed. They could potentially bring a claim (within the limitation period of three months less one day from the termination of their employment) if a fair disciplinary procedure is not followed, despite the employer having a fair reason to dismiss the employee such as misconduct.

It is also a reminder that in circumstances where ill health is concerned, it would be prudent for an employer to secure medical evidence to inform its decision making about the employee’s conduct. This is particularly important in circumstances where the employee is off work on sickness absence and their conduct whilst on sick leave, like in the case of Kane, is an important issue.

Regardless of the outcome of this case, rhw does not condone calling in sick and then going to the pub!

rhw commercial solicitors, Guildford, Surrey. If you are an employer requiring advice on the correct dismissal and disciplinary procedure to follow in respect of an employee or an employee requiring advice on whether you have been unfairly dismissed, our employment team at rhw will be able to assist you. 

Call rhw employment solicitors in Guildford on 01483 302000, complete the contact form or alternatively you can email guildford@rhw.co.uk