We were surprised at Buckett Law by the recent suggestion that there would be an overabundance of people prepared to take hung-over days as ‘sick days’ under the Holidays Act 2003 and that this would be accepted readily by employers.
Realistically, people come to work to do a job; however there will be occasions where, due to overindulgence, their performance may be impaired and it may be difficult to get that work done. There may even be situations where this is dangerous. It really is a question of where the buck stops, because abuse of process should not be something that the law endorses.
The Oxford dictionary defines illness as “a disease or period of sickness affecting the body or mind” and defines a hangover as “a severe headache or other after-effects caused by drinking an excess of alcohol.” The issue of cause is an important one, particularly as the Court of Appeal has omitted to define sickness.
The purpose of the Act is to promote balance between work and other aspects of employees’ lives and, to that end, to provide employees with minimum entitlements to leave when they are unable to attend work because they are sick or injured. This does not sit easily with the regular taking of sick leave which has been brought on an employee by their own choosing. The salience of the cause of sickness is supported by the fact that lying to the boss (i.e. claiming the flu when in fact hung-over) is grounds for misconduct.
Nonetheless, if the contract does not contain tight policies, ie by defining "coming to work under the influence of alcohol" as grounds for serious misconduct, it is difficult to categorise it as such. However, all is certainly not lost; this type of behaviour can be dealt with directly through the performance review process as a performance matter, either for consistently coming to work impaired or for abuse of the sick leave process.