A Muslim employee made a request for leave to allow him to attend the Hajj in Mecca and then visit family. We agreed that he would use his four weeks’ holiday entitlement, and we granted him three additional weeks’ unpaid leave. He was due to return to work on 8 January 2007, but he has not appeared.
We have since received a telephone call from his wife who told us that he will not be coming back to work for at least three weeks. This will cause us considerable difficulties in arranging cover. What can we do?
It may be useful to contact his wife to try and ascertain exactly when he will be returning and the reasons for his absence. If he is unwell, he should produce medical evidence of his illness before he can be genuinely signed off work.
If he simply wishes to extend his stay, he may make a request for additional unpaid leave. You are under no obligation to agree to this request, but it is important that you do respond.
A tribunal has found that the dismissal of an employee after he attended Hajj was unfair, and was indirect discrimination on the grounds of the employee’s religious belief.
The employee in that case had requested holiday and an additional week’s unpaid leave. As his employer did not respond to his request, he went anyway and, on his return, was dismissed for gross misconduct. Had his employer responded properly to his request, it is likely that it would have avoided both claims.
Therefore, if you have made it clear that a request for additional leave has not been granted and that any subsequent leave is unauthorised, a disciplinary hearing should be arranged. You should write to your employee on his return, inviting him to attend a disciplinary hearing to discuss his unauthorised absence, and reminding him of his right to be accompanied. It is likely that an appropriate disciplinary sanction would be a formal warning, but if he already has ‘live’ warnings on his disciplinary record, it may be appropriate to dismiss him.
By Lucy O’Hara, senior solicitor, DWF
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