Paid leave from the Workers’ Statute misused
Patrick Gordinne Perez2024-12-30T04:22:43+00:00In this article we will take a look at the paid time off in the workers’ statute with an example.
One of your employees has asked you for five days’ paid leave due to his mother’s hospitalisation.
However, you know that during two of those days he has been travelling with friends.
Can you sanction him for this?
Paid leave under the Workers' Statute
Five days of leave
Your employees are entitled to five days’ paid leave (i.e. they can be absent from work with pay) in the event of a serious accident or illness, hospitalisation or surgery without hospitalisation requiring home rest of the following persons:
- Of their spouse or unmarried partner.
- Relatives up to the second degree of consanguinity or affinity (children, parents, etc.), including the blood relative of the common-law partner.
- Any other person other than the aforementioned who lives with the worker in the same home and requires their effective care.
Justification for leave
In order to take leave, your employee must give you advance notice so that you can organise yourself (so you cannot just “take” the leave).
In addition, he or she must provide proof of the facts justifying the leave (e.g. proof from the hospital).
In your case, your employee gave you advance notice and provided you with medical proof of your mother’s hospitalisation.
However, you have seen on her social media (in Instagram photos) that during the first two days of her leave she was on a trip to the beach with her friends…
The employee abuses your trust
You can penalise the employee for the leave
Such “misuse” of paid leave granted by your company is a breach of contractual good faith and a breach of trust.
You may therefore penalise the employee.
To do so:
- Go to your agreement and check how this type of non-compliance is classified.
Normally, such behaviour is classified as very serious misconduct.
- See what sanction can be imposed for very serious misconduct.
Although you could resort to disciplinary dismissal (the Workers’ Statute itself allows you to do so in cases of breach of good faith and breach of trust), it is advisable to impose a less damaging sanction.
Specifically, a suspension from employment and salary.
Paid leave under the workers' statute misused in practice
Our Recommendation
The purpose of imposing a less damaging sanction and not resorting to dismissal out of hand is as follows:
- If you give notice of dismissal and the person concerned contests it, you run the risk that a judge will consider that the facts are not serious enough to dismiss.
In that case, the dismissal would be declared unfair and you would have to reinstate the employee or pay him/her the maximum compensation.
- On the other hand, if you first give notice of a suspension of employment and pay, a judge will most likely consider that the sanction imposed is in line with the seriousness of the facts. Moreover, if this is not the case and the sanction is eventually revoked, you will only be ordered to pay the wages accrued during the days of the suspension of employment and salary.
The employee is in breach again
If, afterwards, your employee again commits a very serious breach, you will be able to dismiss him.
Even if he contests the dismissal, the fact that he has a disciplinary sanction on his record will be an aggravating factor that the judge will assess and that will give your company more guarantees that the dismissal will be declared fair (without having to pay any compensation).