Q&A: holiday during sickness absence

Our employee is signed off sick for the next 3 months.  However, he has told us that he intends to head off on holiday to Spain in October half term.…

Our employee is signed off sick for the next 3 months.  However, he has told us that he intends to head off on holiday to Spain in October half term. Is this allowed? How should we classify the holiday period? We currently have the week marked down as pre-booked annual leave.

The law in respect of sick leave and annual leave is not absolutely clear and is open to interpretation. However, European case-law suggests that, in these circumstances, the employee should be allowed to designate his holiday period as sick leave and reschedule his annual leave for a later date.

The case of Pereda v Madrid Movilidad provides that where an employee’s pre-arranged annual leave coincides with a period of sick leave, the employee must have the option to designate an alternative period for the exercise of the right to annual leave under the Working Time Directive.

This decision is based on the principle that all employees are fundamentally entitled to annual leave as a period of relaxation and leisure. If an employee is sick then they do not enjoy the benefit of the annual leave from a health and safety perspective. The purpose of their leave is to assist in their recovery from the illness.

It should however be noted that this is a decision on the Working Time Directive (which derives from EU law) and not the Working Time Regulations (which derive from UK law). However, even though the Working Time Regulations do not expressly grant employees this right to reschedule their annual leave, I think a UK Employment Tribunal is highly likely to interpret the legislation in light of this case.

Presumably this employee has a medical certificate to cover their absence including the holiday period and presumably we accept that she will be unfit for work at the relevant time. There is no legal requirement for a worker who is signed off sick to stay at home. Indeed, depending on the reason for the employee’s absence, a holiday might help them to recuperate. However, you can of course still ask that the employee keeps in touch with work and informs their manager if they will be away from their home address for an extended period.

Understandably, many employers feel that allowing employees to reschedule leave if they are sick during a holiday opens the door to dishonesty. For example, an employee may incur a short self-certified absence immediately before going on pre-booked holiday and later claim that they were sick for the whole period.

Bear in mind though that there are strategies you can put in place to prevent abuse. While an element of taking things on trust may be unavoidable, recording and monitoring sickness absence properly will of course help to identify abuse of the system. There is no reason why the measures you usually adopt to manage sickness absence, such as requiring employees to report sickness to their manager and provide medical evidence to cover longer absences, should not also apply when sickness occurs during a holiday.

Jon Gregson (jon.gregson@weightmans.com) is an Associate in the Employment, Pensions and Immigration Team and is based in Liverpool.

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