One of my employees, who has been with me for years, has asked for 4 weeks off next month in order to take an extended holiday. I have refused his request but have heard from other employees that he still intends to take this time off. Can I do anything to stop him?
The first thing to do would be to have a meeting with this employee to explain that if he takes the time off from work then you will view it as unauthorised absence and take appropriate disciplinary action against him, which may result in his dismissal. Confirm the meeting in writing, pointing out what will happen if he chooses to go in any event.
If the employee then goes off sick at the same time as the planned holiday, then you will have to investigate the reason for the sickness and also find out if he has indeed gone away for his extended holiday. If you have no evidence to dispute that he is genuinely sick, you will struggle to take further action. If, however, there is evidence that he has gone on holiday, then you will need to invite him to a disciplinary hearing on his return to take appropriate action in relation to his misconduct. He should be given the right to be accompanied at the hearing by a work colleague or union official (whether or not you recognise a trade union).
As he has worked for you for over 1 year continuously, then he can claim unfair dismissal if you decide to dismiss him. Assuming you have followed the statutory dismissal procedure, the Tribunal will consider whether you have acted reasonably in all the circumstances. You would have to show that you have been consistent in your approach with employees who have taken unauthorised leave in the past. If you have merely "had words" with them when they have returned from holiday, but have dismissed this employee for a very similar reason, then this would increase your employee�s chance of succeeding in his claim.
You would have to show that he had committed 'gross misconduct' in order to jump straight to dismissal (assuming that this individual has received no recent warnings about his conduct). It may be safer to issue him with a final written warning, which must be carefully worded so that any future misconduct within the lifetime of the warning may result in his dismissal, following further disciplinary action.
Finally, this employee could claim race discrimination if, for example, you agree to extended holiday requests for employees to visit their relatives in Australia but refuse those with similar requests to visit relatives in India. Therefore, you would need to consider how you have dealt with requests for extended leave in the past in order to be consistent.
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