The current position is that if an employee is absent due to ill health reasons before and then during what was pre-booked annual leave, they should, as far as the Working Time Directive is concerned, have the right to reschedule the holiday for a later date. If that employee remains off sick until the end of the leave year, then the Directive allows them to carry over any remaining holidays to be used within the next holiday year.
If an employee becomes sick during a period of annual leave, then potentially they may be able to take that sickness affected annual leave at a later date, depending on the circumstances.
What is “sickness-affected” holiday?
Unhelpfully, case law has provided no definition of this and therefore it is entirely dependent on the specific circumstances. The key issue to consider however, is whether the employee would have been fit to work.
An employee breaks their foot during a hiking holiday. This may well affect their enjoyment of the holiday, but actually would not prevent them from working (dependent on their role). Therefore, an employer could decide that because they were fit for work, they are not entitled to change this to sickness absence and reschedule the holiday. One point to consider is the case of Stringer which states that the purpose of annual leave is to enable the employee to enjoy a period of relaxation. Therefore, if the illness or injury prevents them from resting and relaxing, potentially that leave should be rescheduled. This will always come down to what the sickness/injury is and how it affected their holiday.
How to prevent abuse of your holiday system:
- If staff are paid Statutory Sick Pay (SSP), the chance of abuse is likely to be less. There is a three day waiting period where no SSP is due and together with the low value of SSP, employees are less likely to request to turn paid annual leave into sickness absence.
- Ensure that there are robust sickness absence management procedures in place such as: rules on how and when to report absence, medical notes for absences longer than seven days and ensuring return to work meetings are held after a period of sickness. There is no reason why these procedures should not be followed for sickness that occurs during annual leave. Employees should also be made aware that failure to follow such procedures could face disciplinary action.
- Require employees to provide medical evidence (over and above self-certification) for sickness that occurs during annual leave.
As can be seen from the above, this is not a “one size fits all” situation and employers should ensure they take into account all circumstances when considering this issue.
For advice on sickness-affected holidays and putting an effective absence management procedure in place, please contact Katie Hodson in our Employment Law & HR team on 0161 475 7670.