Employers are being warned to be wary of plots by staff who make false sickness claims and claw back paid holidays following a widely criticised EU court ruling.
Leading employment lawyer Jonathan Whittaker of SAS Daniels LLP says a minority of dishonest workers who have taken holiday leave during the Christmas and New Year break may well try to test an EU Court of Justice ruling that if an employee is ill on holiday, then they can claim the time back as sick leave from their employer.
The judgment follows a case in which a Spanish council worker launched a legal action after being refused the right to alter holiday plans due to injury. The court ruled that if a worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period.
“This ruling sets a precedent in case law, and is wide open to abuse by some crafty employees who might devise a sickness claim over a few glasses of vino and see it as an easy way of increasing their holiday allowance when they get back to Blighty,” said Jonathan Whittaker.
“And, of course, all these people will believe that nobody else has thought of it.
“The potential penalties for employees who try but fail to pull off this scam is that they can be dismissed for dishonesty, and hence gross misconduct.
“Clearly employers would have to carry out a proper investigation and would have to have reasonable grounds for believing that the employee had been trying to pull off a scam, but if they had those reasonable grounds then they would be entitled to dismiss employees for gross misconduct without notice.
“Employers should hold very detailed return-to-work interviews with their suspect employees. They should not hold back from asking searching questions about the illness, the symptoms, the medication which was taken, and, in these types of cases in particular, demanding a detailed account from the employee as to how they spent their day. Questions need to asked that are designed to require the employee to demonstrate that they were sick and they were not really enjoying a period of relaxation and leisure.
“Ultimately the employee could claim that they were asserting a statutory right to have their holidays converted into sickness and if ultimately they could prove that they were genuinely sick and the employer refused to do anything about it then they may be entitled to resign and claim constructive dismissal - in effect unfair dismissal - in an Employment Tribunal and claim compensation up to £65,000.
“In summary, the penalties for both employees and employers in seeking to abuse this system are very considerable indeed. A considered, reasonable and sensible approach needs to be taken after detailed enquires have properly been pursued by the employer – but this EU precedent has great potential to flush out some really quite sneaky claims.
“Employees and employers alike – beware.”
sas daniels LLP
Contact: Jonathan Whittaker / Tel 01244 305900
Member since: 24th January 2011
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