I have an employee who was on sick leave just before they went on holiday and I have now seen pictures of him on holiday, having a whale of a time. What can I do?

If an employee is suffering from an illness or an injury, they are entitled to take time off work. However, whether going on holiday while on sick leave is acceptable will depend very much depend on the nature of their illness or injury and the circumstances involved.

Going on holiday, can often be justified, especially if the employee is suffering from stress or some other condition affecting their mental health. In this context, taking a holiday may actually help with their recovery and facilitate a speedier return to work.

However, you would not ordinarily expect an employee to be going on holiday while on sick leave. In many cases this would serve to undermine the extent of any reported illness or injury, providing grounds for disciplinary action or even dismissal where this is indicative of what’s known legally as “malingering”.

If an employee goes on holiday while on sick leave, and there is evidence of alleged malingering, you may be justified in taking disciplinary action against the employee for misconduct.

You are required to accept a Doctor’s fit note at face value, unless you have clear evidence that casts doubt on whether the employee is genuinely unfit for work, so prior to instigating any disciplinary proceedings, it’s important that you carry out a full investigation to understand the reasons behind an employee’s decision to go on holiday while on sick leave.

If you have doubt over the employee’s fitness for work, it may be appropriate to involve an independent medical assessment via an occupational health professional, who can review the employee’s condition objectively. You should also carry out a return to work interview when the employee returns from their period of holiday/sickness. Once you have all the required information, it is important that any action you take is in line with your company’s sickness policy and disciplinary policy/procedure and involve an HR professional for their advice and support to  ensure any unfair discrimination or dismissal claim is avoided.

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