Sacked For Sick Leave While On Holiday?

[EDDIE51]

My son works for a large multi national company. 5 weeks ago he dislocated his shoulder trying to move a large very heavy piece of the firms equipment.
He has not been able to work since, he has had doctors and hospital certificates for every day of his sick leave and has gone out of his way to inform the firm of the situation as he has each doctors appointment and test.
Today he was told by the hospital that he has nerve damage and a possible hairline fracture but more tests are needed.He has been signed off for another 4 weeks. There is a complication, he is due to go on holiday to the USA on Tuesday the 6th. ( booked over a year ago) The company say he should cancel his holiday in case they can find him 'light work' that he could do while still injured.
The travel insurance co doctor says that the injury is not sufficient to justify canceling his holiday and he is fit to travel but not to work.
The company are now saying they would have grounds to dismiss him if he goes on holiday while on sick leave. They have accepted that the injury was caused by work and that there was not an instruction in place as to how the equipment should be moved.As it is a 'work related' injury they have to pay him until he can return to work.
Can they do this (dismiss him) when they have accepted that the injury was at least in part due to the company's lack of instruction as to how to move the equipment? Can he go on holiday while off sick?
He can't go back to work voluntarily as his doctor still says he is not fit to work, He was intending to go back to work and take the 2 weeks as holiday to save the problem. Sorry for such a long post.

[EDDIE51]

Just to add , he did go back for 1 day and was supposed to be given 'light duties' but when he got to work there was no 'light work' available so he was ordered to do his normal job. This made the injury worse, confirmed by both his doctor and the hospital. He does not want to go back until he is fully fit and his doctor agrees with this.

[fiction-factory]

Seems very harsh and unfair. First question eddie- how long has he worked there?

[Prudie]

Eddie you are usually the expert on these type of questions! I see no reason why he can't go on holiday while signed unfit for work, if it was depression they wouldn't have a leg to stand on. I'm surprised the company is taking this stance as it sounds like your son would have grounds to make a compensation claim against the company based on industrial injury alone. I'd suggest he seeks expert advice - perhaps form the Union or check his rights with ACAS.

[fiction-factory]

He is entitled to have holidays (assuming he gave appropriate notice and got agreement initially) as he has earned them and is still accruing holiday entitlement while off sick. Even if they found suitable light work for him to do today there is no reason I can see why she he should be made to come in instead of take the holiday

[bednobs]

you cant have paid holiday and pid sick leave at the sme time.

[Sycamore3House]

If he was off sick with depression & he went on holiday that would be classed as part of the rehabilitation. Surely this would also be classed as the same. The company are probably miffed that as he is signed off sick, his holiday entitlement will not apply as he is sick and when he returns to work he will still be owing the holiday. They can't dismiss him if he is signed off sick.

[fiction-factory]

I'm sure he only expects to get paid once. My colleagues and I just got our normal pay when off sick (less than 6 months)or on holiday

[fiction-factory]

The length of service is crucial here. If less than 2 years they probably can just sack him.

[Peter Pedant]

I googled taking booked holiday whilst sick
and gotthis
http://www.acas.org.uk/index.aspx?articleid=4264

Your sons line mgr is not being helpful
and I cant understand why as they must be considering there will be a claim ( nerve damage )

you cant be sick and on leave at the same time
but I thought sick leave took precedence
and he has been certificated....
so why did he turn up for light work whilst off sick ? ,,,, never mind

his leave must have been booked and agreed
and I dont see why he cant rely on that

the other thing is of course he can invite them to pay for the cost of the cancelled holiday as it is their actions that have caused that directly

srry about this eddie
I think they are gearing up to fire him
which they might well do anyway

[EDDIE51]

He has been there over 6 years and has been promoted several times, he is now a senior team leader. He phoned his Union rep while I was with him and the 'rep' said that there was a case where a worker was dismissed for going on holiday while off work with 'work related stress' . I was very unimpressed with the union rep's answer, it was NOT what I was expecting. That is one reason I am asking this question. I had a work injury 15 or so years ago and went on holiday while off sick. The company were happy about it and paid my unused holiday pay at the end of the year
I was thinking the rules may have changed.

[bednobs]

i think it'll depend on hiy it note. If it says he should refrain from all work, then it no buisiness of his company what he does while off. If it says he is fit for light duties,he needs to be availble to undertke them, rather than get sick pay

[tonyav]

If I were him I would get a claim in now ( nerve damage ), the firm are at fault 'no instruction in place as to the equipment should be moved'.
I agree with Peter, I also think that they are gearing up to sack him.

[Hymie]

Given the length of time off work following the accident, the company are legally required to notify the relevant authorities of the accident.

http://www.hse.gov.uk/riddor/reportable-incidents.htm

If they have failed to do this, and they dismiss him – it would not look good for the company. It might be that such behaviour would allow a claim for unfair dismissal within the first 2 years of employment.

Personally, if my employer treated me like that, I’d be looking for alternative employment.

[Sycamore3House]

//I had a work injury 15 or so years ago and went on holiday while off sick. The company were happy about it and paid my unused holiday pay at the end of the year.//

You are still correct in thinking that. You can be sick & do what you want (as any contact from employer could be classed as harassment) then when you are fit to return still have holiday entitlement.
As you are unhappy with the union response why not call ACAS for advise.

[EDDIE51]

^^ This was the Union rep at his company!. I have asked him to talk to the Unions national legal team!

[woofgang]

When I worked in the NHS the rules were as follows.
If you had booked a holiday and were on sick leave when the holiday became due, if you were able to go on holiday then you could go but the time away came out of your annual leave just as though you were at work. Once you returned home, if you were still unable to work then your sick leave started again. This is because if on long term sick leave, the staff member had to be available to see a doctor or discuss the problem with their manager or with HR or to attend for light duties if appropriate. The benefit to the staff member of this was that it stopped the clock on sickness absence counting. If you were unable to go on holiday then you stayed on sick leave and the annual leave was refunded to your leave allowance.
The sole exception to this was where taking a holiday was part of a treatment plan, for instance if off with stress.

[EDDIE51]

Thanks Hymie I did know about 'notifiable injuries' it has been put in the accident book so I am sure it will have been reported.
His doctor has told him not to accept 'light duties' due to the last time when the work turned out to not be available and he aggravated the injury.

[Islay]

You cannot be sacked for going on holiday if you are off sick and the doctor has stated that you are not fit to return to work and is refusing a sick note.
Get a doctors letter stating that the holiday will help with his rehabilitation.

We had a case at work recently where a member of staff was off sick with fibromyalgia, stated that she could not sit at a desk as she was in so much pain, but was OK to sit on a plane for 4 hours.

Her union rep successfully argued that this was OK as her doctor recommended a change of temp to 'help' her!!

[Islay]

Just to add - she did not have to use her annual leave allowance for her holiday it was a continuation of her sick.

[ll_billym]

The issue has now been totally clouded by his going back to work (for 1 day) after the doctor told him he was unfit for work, and then doing work that he should have not (his normal job).

He should have refused to do heavy work but stayed at work until they gave him light work or told him to go home.

I'm pretty sure they can't dismiss anyone solely for going abroad whilst off sick but turning up for work raises doubts about how bad he really is. Be careful on this one.