When annual leave and sickness coincide

When on holiday, employees want to sit back and have a good time, but in some cases, annual leave and sickness can collide, leaving employers with a whole host of issues to deal with.

Our Employment Law Advisers answer some of the most common questions they get asked by employers.

What happens if an employee falls sick when on holiday?

The European Court of Justice has held that if an employee becomes sick before or during a pre-arranged holiday, they are entitled to postpone their annual leave to another date. This may mean that they need to carry it over to the next holiday year. This applies to the first four weeks laid down in European law, not the additional 1.6 weeks prescribed by the UK Working Time Regulations.

If an employee does fall sick while on annual leave, you can:

  • Ask them to report sickness absence in line with your reporting requirements, which should be in your annual leave policy.
  • Carry out a return to work interview to ascertain the nature of the illness and whether they are fully recovered or it is part of an ongoing condition. This will help you determine next steps.
  • Ask for medical evidence either from a GP or an Occupational Health Report.

If you have reason to believe someone’s sickness is not genuine, for example someone has brought to your attention that they have posted lots of photos on Facebook of them having a lovely holiday, you may need to investigate the allegations of misconduct.

Only once you have carried out this investigation and have credible evidence can you proceed to a disciplinary hearing. Seek advice from your Employment Law Adviser to help you navigate through the process.

What can I do if an employee requests to take holiday during a period of sickness absence?

In most cases, the employee will make this type of request because they no longer qualify for Statutory Sick Pay.

The employee does have the right to nominate when they take their leave, even if on sick leave, subject to notice requirements. The employer is within their rights to issue a counter notice and refuse. However, if you refuse and the employee is unlikely to return from sickness absence in that annual leave year, you could be acting in violation of the Working Time Regulations.

To explore this further, contact your Employment Law Adviser who can give you guidance.

Director of Legal Services

James Tamm

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