Amy McIntosh was employed by a day nursery but had been signed off work for a number of weeks by her GP due to tonsillitis. During the opening ceremony, Ms McIntosh was seen on live television, which was broadcast across the globe. It also became apparent that everyone involved in the Games ceremonies has been at rehearsals for a number of weeks in the build up to the main event - during which time Ms McIntosh was off work sick. Her employers, among many others, saw her appearance on television and it has been reported that she may be dismissed albeit her employers have not confirmed this, to date.
This reminded me of a similar story in early 2013 about a British volunteer who was dismissed after his employers saw video footage of him wrestling a shark whilst on sick leave. In that case, Paul Marshallsea was employed by a charity but was off work on stress related sick leave. During this time he went on holiday to Australia and, while at the beach, saw a shark in the busy shallow water. He grabbed it by the tail and dragged it further out into the sea away from a group of children. An Australian news crew happened to be filming nearby and filmed him wrestling with the shark. The video footage subsequently went viral.
When Mr Marshallsea returned home he found a letter of dismissal from the charity stating essentially that if he was fit enough to go on holiday and wrestle sharks he should not be on sick leave and that "the breakdown of the trustees" confidence and trust in you and your ability to perform the role is so great that we find that dismissal is the only course of action we can recommend". Mr Marshallsea took his employers to an Employment Tribunal claiming unfair dismissal. The parties have apparently reached a settlement although the details of this have not been made public.
So, when are employers within their rights to discipline or dismiss employees who are off work sick but are seen to be going on holiday or attending social events? My experience is that very often employers find out about this sort of issue from other employees reporting comments or photos that they have seen of the employee on facebook or twitter during the time that they are supposedly sick.
The main advice I would give to employers in this sort of situation is that they should not have a knee jerk reaction as it will depend very much on the circumstances. For example, where the illness is stress related, as was the case of Paul Marshallsea, it may very well be beneficial to the employee's recovery for them to be going on holiday or taking part in other activities. This is less likely to be the case with, for example, tonsillitis and, as such, the Tunnock's teacake dancer may be in difficulties if her employer takes matters further.
Where employees are going on holiday or taking part in activities as part of their recuperation then they should, of course, avoid this coming as a surprise to their employer by letting their employer know in advance, ideally supported by a letter from their GP.
Employers who find themselves investigating this sort of situation should ensure that they follow a fair process which is compliant with the ACAS code.