Employee overstays holiday claiming to be sick - what can you do?

Employee overstays holiday claiming to be sick - what can you do?

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11 Feb 2018

Your employee went on the standard permitted 2 week holiday, but then became ‘ill’ and overstayed by another 2 weeks, producing a medical note from a local doctor as evidence. You’re suspicious, but what really can you do about it? Quite a lot as it happens, our article covers the key considerations.

Pretending to be ill is a disciplinary offence and overstaying a holiday could be regarded as unauthorised absence, gross misconduct in some circumstances. In a case where you suspect an employee may have deliberately overstayed a holiday, the following will be key considerations:

  • The length of service of the employee and their disciplinary history generally
  • What was the nature of the illness claimed, what treatment was prescribed and is the employee still under treatment? Did you know already that the employee had a health issue?
  • Has this sort of thing (overstaying holidays) happened before?
  • Did the employee initially request a longer period of leave (overlapping with the period overstayed)?

Depending on the answers you may have reason to be suspicious, and it may be appropriate to start a disciplinary investigation when the employee returns to work.

Before the employee returns

If you are able to contact the employee step 1 is to inform them (while they remain absent) that absence without permission is a serious matter that will need to be investigated when the employee returns. This will ensure the employee is aware of the seriousness and might try harder to return to work sooner.

Once they return - investigation

The investigating manager should ask to see copies of the employee’s flight and (if applicable) accommodation confirmations to see whether the employee’s claims are supported by the documentation. Tickets that don’t show the expected return date at the end of the authorised holiday will raise suspicions further, and the manager may decide to make an enquiry with the airline – while they’re unlikely to discuss a particular person’s travel arrangements most airlines will be happy to answer general questions about how a return flight may be booked and what would be shown on a ticket/statement. (NB, if the employee had claimed ‘no seats’ instead of illness the airline should also be able to confirm availability on and around the scheduled return date.)

If the employee produces a medical certificate from a foreign doctor, steps could also be taken to contact the practice to establish whether it’s genuine, although if other evidence points to the absence being premeditated the employer may decide to treat the medical certificate as less relevant. In some countries it is possible to buy medical notes and fake medical notes are widely available on the internet. That said it is unwise to base a case on whether or not we think a sick note is genuine – better to look at the other circumstances and decide whether or not the absence appeared, on the balance of evidence available, to be premeditated.

Of course the investigating manager should explore all of these things with the employee in an interview, and the employee should be asked to sign a record of the interview notes, confirming accuracy. There is no right to have a companion present at an investigation meeting, but the employer may allow one at its discretion.

If the investigating manager decides that the absence appeared pre-meditated, the next step would be to schedule a disciplinary hearing (a right to have a companion present does exist here) warning the employee if dismissal may be an outcome.

myHRdept can help with investigations and hearings and will write accompanying letters and reports for retained clients.

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