Shark attack! Sick leave and gross misconduct

The press have reported that an employee who grappled with a shark paddling towards children, returned home from his holiday to find that he had been dismissed without notice.

The employee in question was on sick leave for work related stress. Following advice from his doctor to take a holiday, he and wife took a two month break to Australia. On viewing the postage of a video of him wrestling with a shark, his employer decided that his behaviour had caused a breakdown in confidence and he was summarily dismissed.

All employees with at least two years’ service have the right not to be unfairly dismissed. For a dismissal to be fair the employer must have a fair reason for dismissal and follow a fair procedure. Misconduct is potentially a fair reason for dismissal. This is the case whether an employee is on sick leave or not and claiming to be sick when one is not, is likely to constitute misconduct. As regards a fair procedure it is very important that as a minimum employees are given the opportunity to explain how they have behaved, as however things may look at first blush, they are not always what they seem. It is very rarely that an employer would want to dismiss without first meeting with the employee so that the employee has the opportunity to explain his position. If a meeting does not change anything then the dismissal can go ahead.

In this case, a point to note is that the reason given for dismissal was a breakdown in trust and confidence. This is potentially a fair reason for dismissal but would not entitle the employer to dismiss without notice. That is only in the case where the reason for the dismissal is gross misconduct. It is also worth remembering that employees who are on long term sick leave will have special protections if they are “disabled” within the meaning of the Equality Act 2010, and this is another reason to consider any action carefully.

Whether this matter results in proceedings remains to be seen. But for now, one wonders what job the employee will go to next; as he said, “there is not much call for shark wrestlers in Merthyr Tydfil”.

If you would like any further information about this issue, please contact me by emailing alexandra.carn@edwincoe.com.

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