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Off sick and in Australia?

The BBC have reported that Mr Marshallsea, who recently grabbed a shark by the tail and dragged it to deeper water during an extended period of sick leave for work-related stress, has been dismissed. The BBC reported that Mr Marshallsea was told by his employer, “whilst unfit to work you were well enough to travel to Australia and, according to recent news footage of yourself in Queensland, you allegedly grabbed a shark by the tail and narrowly missed being bitten by quickly jumping out of the way“. His employer also reportedly told him in a second letter that “the breakdown of the trustees’ confidence and trust in you and your ability to perform the role is so great that we find that dismissal is the only course of action we can recommend.”

This news report highlights an issue that is often close to the heart of HR professionals dealing with long-term absence cases who become aware that an employee who has been signed off work as sick has gone on holiday. It begs the question: can an employee be on sick leave and on holiday at the same time?

In short, yes. There is no legal requirement for an employee who is signed off work to stay at home, nor is there any prohibition on an employee going on holiday, either in the UK or abroad, during a period of certified absence.

While it can be tempting to take an interest in what an employee is doing while they are off sick, particularly in cases where an employer believes that an employee’s illness or condition may not be genuine, it is important to avoid making snap decisions based on reports that an employee has been seen out enjoying themselves or has gone abroad on holiday.

Often, particularly in cases where an employee is suffering from stress or depression, employees may be advised by their GP that taking a holiday or taking part in sport or social activities may be beneficial to their condition and facilitate their return to work. While this can be frustrating for employers, particularly in circumstances where there are concerns about the authenticity of someone’s absence from work, these concerns should be investigated by way of a medical examination by occupational health or a qualified health professional.

If any recommendations are made following a medical examination, these should be followed to try and facilitate the employee’s return to work. If any evidence of the employee’s illness not being genuine or being overstated comes to light as a result of a medical examination, an employer should deal with this type of issue as misconduct. Any disciplinary proceedings should be handled in line with an employer’s own disciplinary policy and the Acas Code of Practice.

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