Legal update – taking a holiday during sick leave.
Our resident law expert, Ed McFarlane is here again to give you his take on this month’s significant employment law cases, this week he’s discussing how to manage holidays taken during sick leave.
Absence didn’t make the heart grow fonder in a recent Employment Tribunal case that went to appeal in the case of Mr S J Lyons v Total Sign Solutions Ltd.
Mr Lyons was signed off sick from work with stress, but, the day after getting a second fit note, took a holiday in Australia without requesting or being granted annual leave by his employer. His colleagues saw pictures of him on Facebook, driving a sports car in Singapore. He returned to work suntanned and, on his first day back, it appears that a Company Director dismissed him in the course of a discussion about his absence. The Director’s argument that Mr Lyons agreed to resign and was not fired was not accepted by an Employment Tribunal, which preferred Mr Lyons description of that meeting (at which his partner accompanied him) and he was found, unfortunately for the employer, to have been unfairly dismissed and therefore due to compensation. The appeal considered some rather technical points about the decision of the Tribunal, which seemed to have got bogged down into allegations over whether the employee had improperly booked holiday or improperly taken holiday, to reduce compensation because Mr Lyons had misled his doctor about his sickness.
What we can see from the case is that no matter how obvious it might be to an employer that an employee has been up to no good, an employer should follow a formal procedure involving an investigation into alleged misconduct, and then a disciplinary meeting over clear allegations, if any, arising from the investigation.