The People Bulletin

August is the most popular month for summer holidays – and employers have something of an annual challenge ensuring there is adequate cover for workers enjoying a much-needed break away from it all.

But what happens when the very day the returning holidaymaker is due back in the office starts with a phone call (or even a text) to say they have gone down with a bug while on holiday and cannot come to work?  Is this just a ruse to extend the holiday (as one employer suspected when a group of Eastern European workers repeatedly did this after visiting family back home)[1], or just carelessness after too much sun and sangria?  And what, if anything, can the employer do about it?

Rebecca Fox, a solicitor at Matthew Arnold and Baldwin LLP told The People Bulletin:

‘It may be risky for an employer to instigate disciplinary procedures without evidence that an employee has taken sickness absence, when they are not unwell. If the employee follows the company's sickness procedure, they usually do not need to provide a doctor's note (FIT note) until the seventh consecutive day of sickness.

However, in the right circumstances, if an employee has a clear pattern of absence after every holiday, an employer may be able to instigate disciplinary proceedings to discipline the employee.

Employers may wish to protect themselves by having properly drafted policies, including the right for employers to hold return to work interviews, which may have the effect of deterring an employee from taking false sickness absence.’

Back in September 2009, The People Bulletin reported on the European Court’s decision in Pereda v Madrid Movilidad SA that workers are entitled to reschedule their annual leave if they fall sick on holiday.[2]  The problem facing employers is the provision of medical evidence that the worker actually was sick during their holiday.

[1] www.ukbusinessforums.co.uk/forums/showthread.php?t=122281

[2]  www.apbusinesscontacts.com/hr-pb_5/news-sick.aspx