If an employee is genuinely ill or injured, they are entitled to take time off work by way of sick leave. However, it is not uncommon for an employee to fabricate illness or injury to get time off, sometimes as a result of a holiday request being declined by their employer.
There are various scenarios where an employee may call in sick having had a holiday request declined. This could include where the employee is looking to head off on a long weekend break and has requested to take the Friday off work, or where they are looking for an additional day either side of a holiday abroad. Equally, it could be where they have a particular event to attend, perhaps a mid-week wedding or to celebrate a birthday, together with a whole host of other reasons why an employee may request time off work and, regardless of having had their request refused, they still opt to take that time off.
In circumstances where an employee has been refused an annual leave request but calls in sick, it is possible that they are genuinely unfit for work, where the incidence of illness or injury coinciding with a day which they requested to take as holiday has happened by chance. However, in many cases, the more likely scenario is that the employee is ‘pulling a sickie’, although it may be difficult for the employer to prove that this is actually the case.
The following guide for employers looks at how to deal with an employee calling in sick on declined holiday days. We explain the law on managing holiday requests and unauthorised absences. We also look at how an employer should address any rumours about an employee planning to call in sick, as well as how to handle a situation when an employee has, as the rumour mill suggested, called in sick on a declined holiday day.
What does the law say about calling in sick on declined holidays?
Employees are entitled to 5.6 weeks’ paid leave per year, although they must still request when they take this holiday. By law, an employer can refuse an annual leave request if it is not practical, convenient or will negatively impact their business. However, there may occasionally be a scenario where holiday has been requested and refused, yet the employee phones in sick on the very same day that they had originally requested as holiday.
If an employee has called in sick on a declined holiday day, this is potentially an unauthorised absence. An unauthorised absence is where an employee is absent from work, without the employer’s permission, on a day where they are contractually required to work.
As such, provided there is clear evidence that the employee has been dishonest, commonly referred to in the workplace as ‘malingering’, the employer may have the basis upon which to bring disciplinary proceedings. This will provide the employer with the opportunity to fully but formally investigate the matter, while giving the employee the opportunity to explain the circumstances of their absence and put forward any mitigation. Depending on the outcome of these proceedings, the employer may then take disciplinary action against the employee, ranging from a verbal or written warning to even dismissal for misconduct.
Dealing with rumours of employees pulling ‘sickies’
The workplace can be rife with gossip, where an employer may be made aware of the possibility that an employee who has recently been refused a holiday request is planning to ‘pull a sickie’. Still, even if the employer strongly suspects that an employee has this in mind, where they have heard more than one rumour of an employee’s plans to call in sick, the employee has not actually committed an act of misconduct at this point in time. As such, it can be difficult for an employer or line manager to know how to handle this.
For some employers, they may choose to do nothing, unless and until the employee actually calls in sick. For others, especially if the employee’s absence is likely to have an adverse impact on the business, they may prefer to pre-empt in advance the possibility of them calling in sick on declined holidays. In either case, this is at the employer’s discretion.
In circumstances where an employer suspects that an employee is intending to ‘pull a sickie’, the employer is entitled to take pre-emptive action by relaying their concerns to the employee and asking them if the rumour mill is true. It is both the employer’s right and responsibility to ask direct questions of their employees to ensure good staff management, where it can often be better to make a member of staff aware of the employer’s concerns before an act of misconduct is committed, rather than deal with the matter after the event.
In some cases, waiting to see if an employee goes on to commit the suspected misconduct can cause the employer all kinds of problems, from the impact that the employee’s absence may have on the employer’s business, to the possibility of having to commence time-consuming disciplinary proceedings to address the alleged misconduct. Still, if the employer is going to address the matter head on, prior to any wrongdoing taking place, they should address this sensitively with the employee, and without making unfounded accusations. While it is acceptable to ask for reassurances that there is no credible basis to the rumours, it is unwise to accuse an employee of anticipated dishonesty without concrete evidence.
It may also be helpful at this stage, where an employer has elected to directly pre-empt their concerns with the employee, to explain or reiterate why the employer has been forced to decline the employee’s annual leave request. If an employee understands why a holiday request has been refused, and appreciates the legitimacy of those reasons, the employee is more likely to respect the employer’s right to refuse their request. They are also less likely to go against the employer’s decision by calling in sick on declined holiday days.
How to deal with employees calling in sick on declined holidays
If an employee calls in sick on a declined holiday day, the employer should not jump to conclusions. Even with previous rumours of an employee’s plans around calling in sick on declined holiday days, this does not necessarily mean that those rumours are true. Still, even though this could be a coincidence, the employer may want to investigate further.
The employer should endeavour to speak with the employee directly on the day of alleged sickness, rather than accepting any message or voicemail. Further, if the employee is avoiding any conversation, or the employer remains unhappy with any verbal explanation given by the employee, the employer should arrange a return to work interview. This will provide an ideal opportunity to ask the employee questions around their fitness for work.
In many cases, return to work interviews are standard protocol following an employee’s absence to ensure that the employee is fit for work having been genuinely unwell. This is because the employer is under a statutory duty to ensure their employees’ health and wellbeing. However, the return to work interview can also legitimately be used to prevent bogus sickness absences, where an employer is permitted to ask an employee to verify the reasons for their absence. This will be the case, even where it is more than obvious that the employee is now suspected of malingering, for example, where the employer has already sought to pre-empt any rumours of the employee ‘pulling a sickie’ by having a quiet word.
In some cases, the employee may decide to come clean, in which case a decision can be made as to how best to deal with this by way of any disciplinary sanctions. Often, a verbal warning around the impact of this type of misconduct on work colleagues, where others have beed forced to pick up the slack, as well as the impact on the business, such as where an important deadline has been missed, will be enough to prevent any further incidents. However, where this is not an isolated incident of malingering, the employer may want to instigate formal disciplinary proceedings with a view to a written warning or dismissal.
The employer is also entitled, in circumstances where the employee is unable to satisfy them that their sickness absence was genuine, to commence disciplinary proceedings so as to formally investigate the allegations. As with any allegations of misconduct, the employer must follow a full and fair disciplinary process, providing the employee with an opportunity to state their case and to respond to any evidence against them. Equally, the employer should only make a finding of misconduct where there is clear and cogent evidence of malingering, such as where there are photos on social media of the employee seen out.
Even where there is insufficient evidence to prove that an employee is guilty of dishonesty, such that it is not appropriate to impose any disciplinary sanction, the disciplinary process itself will often be sufficient to prevent further incidents of possible malingering. This process can also be used to highlight any obvious patterns of unauthorised sickness absence and to warn the employee of the adverse inferences that may be drawn if this continues, not to mention the serious consequences that could follow from this.
Risks for employers when dealing with malingering & sickies
There are various practical and legal risks for an employer when dealing with malingering. This is primarily because there may not be concrete evidence that the employee has lied about being unfit for work. The mere fact that they have called in sick on a day where they previously requested annual leave does not automatically mean they are being dishonest.
By wrongly accusing an employee of dishonesty, this can seriously undermine the employment relationship, providing the employee with the potential grounds to claim constructive dismissal on the basis of breach of the implied term of mutual trust and confidence between the employer and employee. This is where an employee feels forced to resign in circumstances where the employment relationship has been irreparably damaged, resulting in the loss of a potentially valuable member of staff and a possible tribunal claim.
Still, by not addressing any alleged misconduct, where an employee who is secretly guilty of malingering, this can easily lead to further incidents of bogus sickness absence in the future. The key is finding a balance between fair and effective absence management, adopting a reasonable approach in addressing the matter directly with the employee. This could include, for example, asking the employee if they understand why the company might take the view that their sickness was not genuine, but without directly accusing them of not telling the truth, unless the employer has cogent evidence that this is the case.
How to avoid bogus sickness absence
It would be almost impossible for an employer to wholly prevent bogus sickness absence in the workplace where, inevitably, there will be scenarios where the employer has been forced to refuse a request for annual leave — such as around school holidays or over Christmas, where multiple requests have been made — and the employee calls in sick.
Still, there are steps that can be taken to help keep malingering to a minimum. This includes trying to accommodate annual leave requests where at all possible but, where a refusal cannot be avoided, fully explaining the reason to the employee(s) in question. By getting staff to appreciate the challenges when running a business and, if appropriate, offering incentives for any staff prepared to cover busy periods, this can help to minimise or legitimise any disappointment for those with good reason for wanting to take annual leave.
It is also important to have in place a clear and easily accessible absence management policy, which clearly explains to staff the potential consequences of bogus sickness absence. In cases where there is a clear pattern of malingering, the employer would be entirely justified in deciding to dismiss the employee for calling in sick on declined holiday days.
Need assistance?
DavidsonMorris work with employers to support on all aspects of workforce management and engagement, including strategies and procedures to reduce sickness absence and deal with issues of malingering. Our team of employment lawyers and HR consultants provide a holistic advisory service, combining legal risk management with employee relations and engagement expertise. For specialist advice, contact us.
Calling in sick on declined holiday FAQs
Can employers decline holiday requests?
Employees are entitled to 5.6 weeks’ annual paid leave, although they must still request when they take this holiday. By law, an employer can refuse a holiday request if it is not practical, convenient or will negatively impact their business.
What to do if holiday request is denied?
If an employee’s holiday request has been denied, the employee should ask their employer for the reason for this and see is there is any room for manoeuvre. However, the employer has the right to refuse an annual leave request.
What happens if you are off sick on a bank holiday?
If an employee is off sick on a bank holiday in circumstances where that employee has bank holidays off as part of their annual leave entitlement, the employer should allow them to take their annual leave at a later time.
Can you cancel holiday if you are sick?
Employees have the right to take time off for illness or injury, even if they have already booked this time as annual leave, where it is essential for employee engagement that staff benefit from their full annual leave entitlement.
Last updated: 21 June 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
