A few weeks ago, there was case in the employment tribunal relating to an employee who was dismissed because he was off sick from work but seen at a social club drinking and smoking by a manager. The company commenced disciplinary action against the employee and dismissed him for gross misconduct on the basis that he was not fit to work but was out socialising. The tribunal judge decided that the employee had not been unfairly dismissed as the company disciplinary policy did not define that socialising whilst off sick was a disciplinary offence.
There has been much debate around this case and it is not straightforward. If an employee is off work due to long term sickness such as mental health issues or cancer then the employer cannot expect the employee to stay home and not go out.It is impractical to list every incident that may amount to gross misconduct in the company disciplinary procedure. However, after this case, it would be useful for employers to consider if the policy requires updating.