A recent case has raised an important question for employers: What happens when an employee requests paid leave for a legitimate reason but is later found to have misused it?
One employer faced this dilemma when an employee took five days of paid leave to care for their hospitalised mother—only to be caught on social media enjoying a beach holiday with friends for two of those days. Can disciplinary action be taken in such cases?
Understanding the rules of paid leave
Under employment law, workers are entitled to five days of paid leave in cases of:
• A serious illness or accident affecting a close relative.
• Hospitalisation of a spouse, partner, or family member up to the second degree of consanguinity (including parents, children, and in-laws).
• Surgical procedures requiring home recovery.
• The need to care for a person living in the same household.
To qualify, employees must notify their employer in advance and provide official documentation, such as a hospital certificate.
In this case, the employee met these formalities. However, evidence from Instagram suggested they had not been using the leave for its intended purpose.
Abuse of trust: Grounds for disciplinary action?
Employers have the right to take action when paid leave is misused. Deliberately providing false reasons for leave constitutes a breach of contractual good faith and an abuse of trust—both of which can justify disciplinary measures.
What can employers do?
Before taking action, businesses should follow these steps:
- Check the Employment Agreement – Most industry collective agreements classify this type of misconduct as “falta grave” (high misconduct).
- Determine the Appropriate Penalty – Possible sanctions include:
– A suspension without pay as a warning.
– “Despido diciplinario” (Misconduct dismissal), which is legally justified under the Workers’ Statute for cases involving breaches of trust.
Why a lighter sanction may be wiser
While immediate dismissal is an option, opting for a suspension first can be a safer approach.
If the dismissal is challenged in court, a judge could rule that the offence was not serious enough for termination—potentially forcing the employer to reinstate the worker or pay compensation.
By contrast, a temporary suspension is more likely to be seen as proportionate by the courts. Even if later overturned, the employer would only need to reimburse lost wages, rather than face an unfair dismissal claim.
What if the employee offends again?
If the employee commits another serious offence, dismissal becomes far more defensible. A prior disciplinary sanction on record serves as evidence of repeated misconduct, strengthening the employer’s case and reducing the risk of an unfair dismissal ruling.
Final verdict
Misusing paid leave is a serious issue that undermines workplace trust. Employers must ensure that leave policies are respected and take appropriate action when they are abused. While dismissal is an option, a staged approach—beginning with a formal warning or suspension—may be the most strategic course of action.
