In January 2013, the story of Paul Marshallsea’s battle with a shark hit the headlines. Mr Marshallsea was having a barbeque on a beach in Australia with his family and friends when he spotted a fin in the water as a shark swam towards some children. Mr Marshallsea dived in to the water and grabbed the dusky whaler shark by the tail and dragged it in to deeper water, away from the children.
Although Mr Marshallsea may have been in the media spotlight, his employers in the UK, Pant and Dowlais Boys and Girls Club were not impressed by his heroic efforts. Mr Marshallsea was in fact on extended sick leave from work, due to work related stress, when he had taken a two month holiday in Australia with his family.
When he returned from Australia he was surprised to find that he had been dismissed by his employers. Pant and Dowlais Boys and Girls Club had dismissed Mr Marshallsea as he had been unfit to attend for work but managed to go on holiday to Australia and ‘wrestle sharks’. They felt that the charity worker had breached the relationship of trust and confidence that exists between an employer and an employee.
As a result of this, Mr Marshallsea brought a claim for unfair dismissal in the Employment Tribunal. Although the two sides have reached a settlement and the employment tribunal hearing will no longer go ahead, this case is a useful reminder to employers that they should not jump to conclusions when an employee is found to have gone on holiday during a period of sickness absence. The Working Time Regulations 1998 do not prevent workers from taking statutory holiday whilst they are off sick. Employees are entitled to take holidays whilst off sick and be paid for it, regardless of whether or not they have exhausted their right to statutory and/or contractual sick pay.
Employers should not assume that because an employee is fit to go on holiday that they are fit to attend for work. The employee may still be unwell. There may be a number of reasons as to why a holiday would be beneficial to an employee who is currently signed off from work due to sickness, and it may be just what the doctor ordered, particularly in cases of stress and depression. It is quite normal for an employee to remain covered by a sick certificate over a holiday period.