Blood in the water

The youth worker in question alleges that he was told by his GP that he and his wife (who was a youth worker for the same charity) should get away from their environment otherwise they were at risk of a breakdown. Presumably he was signed off work with work related stress for a substantial period. It was while they were in Queensland, Australia, that the youth worker initially became the subject of media attention for rescuing children from a shark and pulling the shark back out to sea. He says his employers invited him to a disciplinary hearing which he could not attend because he was still in Australia and then dismissed him because they allege their trust and confidence in him had broken down. Their rationale appears to have been that if the employee was fit enough to wrestle sharks, he was fit enough to attend work.

The HSE defines work-related stress as a harmful reaction people have to undue pressures and demands placed on them at work. The latest estimates from the Labour Force Survey (LFS) show that in 2011/12 stress was 40 per cent of all work-related illnesses. It is therefore a significant problem for employers. More significant is the perceived willingness of GPs to sign employees off work citing stress at work with only the employee's account of their symptoms and without expert assessment and guidance.

Unfair dismissal?

Providing that the illness is not long term or likely to be long term and the Equality Act 2010 is not brought into the equation, the main consideration for an employer is likely to be whether dismissing someone who has gone on holiday to recuperate would be found to be fair.

The difficulty for an employer in these circumstances is exemplified by Leeson v Makita Manufacturing Europe Limited UKEAT/0911/00 (20 December 2001). In this case an employee was signed off for a week with tonsillitis and vertigo. On the fifth day of this period he managed to leave the house and played golf to get some fresh air and exercise having been confined to his house for the preceding week (something which had been prescribed by his GP). The employers found out about this and following a disciplinary procedure, Mr Leeson was summarily dismissed for fraudulent misconduct, namely attempting to claim company sick pay when he had been playing golf. The tribunal found that dismissal was unfair because a doctor had signed Mr Leeson off sick and though he was well enough to play golf, he was not necessarily well enough to return to work, or expected to attend on that day.

This was upheld by the EAT and it considered that the employers had acted outside the range of reasonable responses in the circumstances.

These conclusions suggest that an employee who is signed off and follows his GP's advice is untouchable, but is that the case?

Leeson reflects the difficulty for the employer in the shark case. On the assumption that a holiday was sanctioned by the GP and in the absence of any evidence that the youth worker was fit for work, the employer is at risk of acting outside the range of reasonable responses. To reduce this risk an employer must first determine whether the holiday or activities undertaken actually show that the employee was fit for work. This is likely to require medical evidence or evidence from Occupational Health prior to the decision to dismiss being taken to succeed as an argument. An employer's view of stress is unlikely to be enough.

Second they would have to specify that such conduct is an act of gross misconduct in the employer's disciplinary rules. However it is unlikely to avail an employer where the employee's GP has sanctioned the holiday as a way to getting them back to work.

Third they would have to argue that what is fair and reasonable depends on the facts of the particular case. It is strongly arguable that a day on the golf course or even a week's holiday is very different to two months holiday in Australia. However this argument comes close to a floodgates type argument or an argument that it was necessary to dismiss to discourage others. Although the tribunal in Leeson found at first instance that this was part of the reason for the dismissal, this was rejected outright as being a fair reason by the EAT:

The decision faced by the employer in the shark case is clearly fraught with difficulty. What would appear to be clear is that where a GP has signed off an employee with work related stress and has suggested certain treatment or recuperation, an employer must tread very carefully and arm themselves with as much information as they can about the illness and treatment for it before embarking on any disciplinary course of action.

Whether there will be blood in the water in this particular case remains to be seen.