Many employees take the view that it is their absolute right to take their holiday whenever they choose. When they discover that this is not the case and have a request for time off turned down, naturally it can result in disappointment. Certain employees will then react by trying to take the time off a different way. RB’s Employment Team looks at how businesses should deal with that situation.
The most common ruse tried by employees looking for extra days off is to call in sick. In most workplaces, employees can self-certify absences of up to seven days, so an employee might try this excuse and if employers pay enhanced company sick pay, this could give further encouragement to those individuals to bend the rules.
Other employees might try a more creative solution, if the time off is the issue for them rather than the right to pay. UK employment law contains an assortment of rights to time off work. An employee might, ask instead for parental leave. While an employer is allowed to reject a holiday request in most cases, the ability to refuse a request for parental leave is much more limited.
In all cases, giving a false reason for absence from work would be potential grounds for disciplinary action and possibly dismissal. A fabricated illness is a clear-cut example of dishonesty and an unauthorised absence from work. Even in the case of parental leave, the purpose of it must be to care for a child, so if the time taken off work is used for any other reason it would lead to the same issues.
The common trap for employers is that they will assume that the employee is lying to them without conducting a proper investigation. If an employee asks for time off for holiday, is refused, then takes those exact days off for a different stated reason, it will of course be deeply suspicious. However coincidences can happen. Mere suspicions will not be enough to establish that misconduct has taken place.
The evidence an employer needs will depend on the reason given for the absence. If an employee claims to be sick, an employer can ask for medical evidence. While a doctor’s note is not required for absences of up to seven days for statutory sick pay, a disciplinary investigation is a different matter and it can be requested.
Medical evidence is not the only avenue to explore, the employee can be interviewed, evidence of their whereabouts requested, colleagues may have witness evidence to give and social media can be a source of information about an employee’s actual activities.
As a final point, employers should remember that an employee who is genuinely sick does not necessarily have to be sat at home recovering. The issue is whether or not they are fi t to work. Therefore it is possible for an employee to be at a holiday destination but still be off sick. In circumstances where an employee calls in sick after the holiday request is refused, this would be extremely dubious, but it could be that the employee is suffering from stress-related illness and they asked for the holiday as they needed the break from work to recover. Therefore employers should keep an open mind to all possibilities until they have investigated the matter fully.
We will be taking a detailed look at this issue and the solutions available to employers at our Top 10 Big Issues for Employers seminar on 17 November 2016. If you have any questions relating to this matter, please contact Will Walsh by emailing Will on wwalsh@rawlisonbutler.com or by calling him on +44 (0)1293 558540.
