Being dismissed for gross misconduct based on nasty gossip

[Vossisdoss]

Someone I used to work with, who has now moved to another department in the same company called me yesterday to say that she has been suspended, and they are investigating her for gross misconduct with a view to dismissing her.

She is being accused of taking annual leave and not logging it onto the system and also exploiting sick leave, by taking time off when she’s not sick. It looks like all of her colleagues have ganged up on her to support this. She said she can prove she logged onto the computer when they are saying she was on holiday (but they are saying she could have done this from Spain) and her sick leave doesn’t look too awful. She was signed off by her doctor for three weeks after surgery, and there’s been the odd self certified day here and there. Apparently she was seen shopping and in her garden when she was recovering from surgery, and this is what has triggered this.

She’s worked there for twenty years and is so worried that she is going to lose her job. The hearing is next week, and she said that her colleagues have essentially thrown her under a bus - eg saying she came back from her surgery with “a Mediterranean tan” and “didn’t look sick”.

She contacted me as I used to be a union rep. I’ve told her to contact her rep ASAP before the hearing. But can they do this when there is no proof?

I think with all HR cases there is more than people are willing to tell to their friends etc. In this case there must be more or they have behaved very badly terminating her employment.

The employee may also be expressly told not to discuss outside immediate family and legal/trade union adviser so as not to prejudice the investigation.

I think there’s more to this too. Being off work frequently for insufficient reason (AWOL as a as says) is misconduct. It’s not capability. If it’s very frequent the employee simply is not working and it’s fraudulent activity. . Plus they can be dismissed for an action outside of work if the company’s reputation is tarnished. Personally I think going abroad when sick is a step too far. Going outside for a walk is fine. It’s a matter of degree.

This has been talked about already, but maybe it's not sinking in: going on holiday, abroad or otherwise, is sometimes recommended by doctors and so can hardly be described as 'a step too far'.

We don't actually know what the alleged misconduct was here. Only vague claims about timesheet errors and rumours of being out of the country when recovering from surgery. Without facts any comment, including my own thoughts are just speculation.

What we do know is

There are good and bad employers and good and bad employees.
One person's malicious gossip is another person's evidence.
Sick certificates can be forged or used fraudulently. I gave an example up thread of people with backache being caught laying patios.
Medical certificates don't exempt employees from following sickness policies.
Holidaying when off sick isn't necessarily a bad thing and may aid recovery, but employees need to check what their organisations policy is.
Sickness pay - where granted - can have restrictions attached. For example, my employer doesn't pay sick pay for cosmetic surgery.

This could well be a hard done by employee who has been shafted by their shitty employer ignoring employment legislation. But it could equally be an employee who has fraudulently claimed sick pay after a series of timesheet "errors" who has been found out.

"... they didn't believe her doctor's note or the OH report." WTAF?! Their HR dept must be absolutely dire. Well, I hope their accounts manager has set aside a sum of money in the company's accounts to pay her ET award (or settlement if they come to their senses sooner!).

@MarkWithaC That recommendation would be very unusual and could, of course, be annual leave. Employers do not have to accept continued absence. I do believe there was more to this than has been said. Absence causes disharmony in the workplace and it’s not fair on others. It is up to employers to manage this situation. It could also depend what the illness was and whether it was ongoing for a long time. No one gets rid of a good employee for one illness.

Well, not that unusual IME.
But I did say it's sometimes recommended by doctors, not 'commonly'.
Thank you for the lecture on absence, but when people are unwell and it impacts on their ability to do their job, that also causes disharmony.

Yes. To the company and to their team. Obviously illness is normal. It’s the amount that matters and I’m not sure employers sometimes see a Dr recommendation to travel. I would say virtually never.

I think the scenario where Drs recommend going abroad to recover from surgery mainly belongs in mills & boon novels from the last century.

It's not usual these days to issue a fit to fly note at the same time as a post surgery sick certificate.

I don't see the connection between the idea of doctors recommending a holiday and 'continued absence'. I didn't say anything about the latter. I was responding to the comments pps have made about it being unacceptable for someone to go abroad when sick.
I know a couple of people, in my fairly narrow social circle, who've been recommended a holiday by a doctor. Anecdotal, sure, but doesn't really back up the assertion that this 'virtually never' happens.

Maybe you're referring to other posters, but I didn't say anything about surgery.
I can only repeat what I just said: admittedly anecdotally, I could point to two people I know personally who've been recommended a holiday by a doctor. I don't see the need for snitty Mills and Boon comments either.

This thread is allegedly about someone recovering from surgery.

ACAS guidance is pretty clear that you can be unfit to work but well enough to go on holiday.

https://www.acas.org.uk/checking-sick-pay/sick-pay-and-holiday-pay

I thought that was common sense but it seems that common sense is not that common.

Again, I wasn't responding to that point but to the belief seemingly held by some posters here that anything more than going for a local walk is unacceptable if you're signed off sick.
This case as the OP tells it is a bit confusing; the person is being accused of being in Spain while signed off, but in fact it seems the only thing that has triggered these accusations is her being seen shopping and in her garden.

Is it that they think the doctor's note is fake or they don't agree with the doctor's assessment?

Yes they do. Brexit. Means passports are stamped.

What a dr might suggest and whether it’s reasonable are two different things. A holiday in the uk is very different from flying abroad. ACAS also say an employee can take annual leave while sick but they should ask the employer if they want it paid.

Update: she appealed against the dismissal and was reinstated. The senior person who heard her appeal has a legal background and said there were no grounds for dismissal, as far as he could see. Her union rep said he didn’t think the company would get anywhere at an employment tribunal. However, she’s now looking for another job as she doesn’t think she wants to work there any longer, having gone through this.

Good for her!

It’s never happened to me or anyone I know.

A doctor saying “you could do with a good holiday” is NOT the same as a treatment plan. Most people would benefit from a holiday at any given point.

Great to hear the senior manager who conducted her appeal understood what a sticky wicket the company was on legally, but as is so often the case, the reinstatement doesn't make up for the hurt caused by their actions. Nor does it re-establish the trust required for an employee to feel comfortable remaining in their employment going forward.
The only advice I'd give her now is to not jump out of the frying pan into the fire - she has 20 years continuous service with her current employer and if this whole situation arose in the first place because one person (maybe a new manager?) wants to get rid of her, she should hang on in there - if they're desperate for her to go they may offer her voluntary redundancy and she could dictate the terms to get a nice chunk of money in her bank and then she can look for a new job. Win, win! 😉

Pity the company is going to lose her, but maybe they'll learn a lesson from it (hollow laugh: I doubt it).
Interesting that the one person with an actual legal background was the one to realise they were on shaky ground.

Fuck's sake. We could argue about this for ever if you're so determined to make me change my mind and agree with you that it's so rare. I don't know what else to say except to repeat my original point that I disagree with those saying it's unacceptable for someone to go abroad when signed off sick.

Employers can do what they like, cry MNers.

Well yes. But actions have consequences and it's usually lawyers who spot those potential consequences.

Good outcome but a bit of a hollow one.