Holiday – in sickness and in health?

The summer holiday season is drawing to a close. Employees have exhausted their holiday entitlement and are counting down to Xmas. Employers finally get a break from juggling workloads and arranging cover – but what about the employees who could not take their holiday because of sickness?

Two scenarios that employers can face:

1. Your employee gets sick whilst on holiday and wants to reschedule this for when they are feeling better.

Do you have to agree this?

There are many theories why people get sick on holiday from catching a bug on the plane to “leisure sickness” – a recognised phenomenon where workaholics succumb to cold and flu symptoms as their immune systems reject the downtime. Many employers struggle with whether such illnesses are genuine or just an attempt to increase holiday allowance.

The European Courts have held that to force an employee who is off sick to take their statutory holiday defeats the health and safety objectives of the Working Time legislation; holiday is for employees to enjoy periods of rest and relaxation; sick leave is for employees to recuperate.

You should therefore allow your employee to take this as sick leave and take holiday at a later date. However, that doesn’t mean there is an automatic right to substitute sick leave for holiday. Employers can manage this, deterring any suspected malingering, by recording and monitoring absence, putting sickness absence policies in place which are robustly applied. Even if employees are abroad they should comply with your reporting procedures, notifying their line manager of their sickness at the first opportunity. On their return they should provide appropriate medical evidence and most importantly attend a back to work meeting. If they fail to do so then they could lose any entitlement to company sick pay.

2. Your employee has been off sick for the last 6 months and has not taken any holiday this year.

Do they lose their entitlement if they don’t take their holiday before the end of the holiday year? Can they take holiday if they are off sick? Can you pay them instead? Can they carry holiday over – if so for how long?

The basic position under the Working Time legislation is that employees must take their 4 weeks’ statutory holiday during the holiday year and cannot be paid instead of their taking holiday (except on the termination of employment). Nor, can they be compelled to take holiday when off sick.

Where does that leave employers – when employees still accrue holiday when they are off sick and could build up large holiday reserves – causing potential logistical and budgeting problems?
If an employee is off sick long-term and this is likely to continue for the holiday year – the employee has a choice. They can either designate a period of sick leave as holiday – which has a financial advantage if sick pay has run out. Alternatively, they can carry holiday over to another year. They don’t have to provide medical evidence that they physically can’t take their holiday, but just have to be on sick leave. Nor do they have to make a request to carry holiday over – this should be automatic.

Employees cannot, however carry holiday over indefinitely. Only last month the Employment Appeal Tribunal helpfully put a timeline on this (although that decision may be appealed) and held that employees on long-term sick leave can carry forward 4 weeks’ untaken statutory holiday for up to 18 months from the end of the leave year in which their holiday accrued.

Time for you to book a holiday?

If you need advice on employee absence management or any other employment matters then please contact the Machins Employment team. Machins can also offer a free audit of employee handbooks and contracts. For further information please visit our website:www.machins.co.uk.