Shark wrestling and the perils of employment

13th March 2013

Shark wrestling and the perils of employment

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There were a lot of stories in the news this week about Welsh charity worker Paul Marshallsea, who was dismissed after his bosses saw footage of him wrestling a shark in Australia while he was off work with stress.  Could this be a fair reason for dismissal?

From what we can gather from various news sites, Mr Marshallsea and his wife were both on extended sick leave for work related stress. During that sick leave, they traveled to Australia to visit friends and while barbecuing on a beach, a shark was spotted in the shallows. Mr Marshallsea ran into the sea and, with the help of another man, managed to turn the shark around and drag in into deeper water. Mr Marshallsea was filmed and that film footage was published around the world making Mr Marshallsea famous.

Unfortunately, the trustees of the charity that employ Mr Marshallsea and his wife seem to have been less than impressed and both the Marshallsea’s have been dismissed. According to what we have read, the charity has not made any comment about the dismissal, but excerpts of the alleged dismissal letter have been printed on various sites. The excepts, if they are true, seem to suggest that the reason for Mr Marshallsea’s dismissal was a breakdown of the trustee’s confidence and trust in Mr Marshallsea’s ability to perform his role.

While we don’t know the details of this case, it raises an interesting set of questions:

  • Can you take holiday while on sick leave?
  • Is it possible to dismiss someone who is off sick and who takes holiday?
  • Would the reason for dismissal be loss of trust and confidence?

Can you take holiday while on sick leave?

Yes. The Working Time Regulations 1998 (WTR) do not prevent workers from taking statutory holiday while they are off sick. There may be reasons why someone wants to do so. For example, if an employee is being paid statutory sick pay, it may make sense for the employee to elect to take holiday entitlement, as they will be paid their full pay for the holiday period.

The WTR includes provisions that permit an employer to serve a counter notice to delay a proposed holiday. If company sick pay is about to expire and it is likely that the employee will be back to work before the end of the holiday period, it may save the employer some money in the short term by delaying the holiday dates.

Employers may also argue that a delay in holiday would be in accordance with the purpose of the WTR, as the purpose of a holiday is to rest, not recover form an illness. However, the holiday entitlement will still accrue and will carry over into a new holiday year, despite the content of your holiday policy. Accordingly, if an employee is off work with a long term sickness, it may make more sense to allow the employee to use up at least 4 of the 5.6 weeks’ holiday entitlement, rather than carry it over.

A holiday may also be just what the doctor ordered. Just because someone is on holiday does not mean that they are no longer unwell. This may be particularly important in cases of stress or depression. It is quite normal for someone to remain covered by a sick certificate over a holiday period. In order to take holiday during a sickness period, the absent employee ought to request holiday in the usual way. The difficulty is of course, that the employee who is not at work may well forget that they still need to seek permission before going off on holiday. If you have someone who is off long term sick, it would be sensible to incorporate holiday planning as part of the overall plan to deal with their long term absence.

Is it possible to dismiss someone who is off sick and who takes holiday?

Yes. If your employee has not followed the holiday procedure and they are doing something that you feel undermines their claim that they are off sick. For example, if an employee has called in sick with tonsillitis and you see film on Facebook of them entering into a singing competition; or they have been signed off with a chronic back injury and you find out that during their absence, they have been on a climbing expedition. These examples may seem extreme but what they show is that the employee has not only failed to follow your holiday procedure but has, on the face of it, lied about the reason for their absence.

In any situation of this sort, it will be vital to investigate thoroughly and to follow an appropriate disciplinary process. It may also be sensible to obtain medical advice about whether the employee could possibly do what they have been caught out doing if they genuinely had the condition they claim to suffer from. Failure to follow the holiday procedure alone would not normally amount to gross misconduct when the employee is not actually at work anyway at the time of the breach of the policy.

If so, would the reason for dismissal be loss of trust and confidence?

The Employment Rights Act 1996 lists a number of reasons that are fair reasons for dismissal. If an employer’s reason for dismissal falls outside the listed reasons, there is a residual catch-all reason which is some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. This is commonly called an SOSR dismissal.

Employers sometimes maintain that they have no choice but to dismiss an employee because of a breakdown in trust and confidence. According to a number of cases, while loss of trust and confidence has been held to be an SOSR reason, reliance on the loss of trust and confidence alone will not usually be enough to establish a fair dismissal. In essence, loss of trust and confidence remains a dangerous ground to use as a reason to dismiss.

Being caught on camera shark wrestling in Australia may on the face of it seem like a good reason to dismiss an employee who you think should be at home, off sick. However, as you can see, it should only form a reason for dismissal if your employee has failed to follow your holiday procedure and seems to have lied about the nature of the illness. This of course does not help Mr Marshallsea. As he told the WalesOnline web site, quoted in the Independent, “Where do I now get a job? There’s not much call for shark wrestlers in Merthyr Tydfil.”

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