It may come as a surprise to some employers that if an employee falls ill during their holiday leave, they are entitled to take the days they were sick as holiday later in the year. This has been confirmed in a recent case in the European Courts which itself followed a previous ruling that an employee off sick could choose not to take pre-arranged holiday but then once recovered take it upon return to work.
The principle behind the cases (known as ANGED and Pereda) is that paid annual leave should enable a worker to enjoy a period of relaxation and leisure whilst sick leave should enable a worker to recover from an illness.
Where workers are only entitled to statutory sick pay this may not be that attractive to an employee and if it does occur at least the cost to the employer will not be excessive, particularly bearing in mind the three-day waiting period before SSP is due.
If the employee is entitled to contractual sick pay then employers can consider applying the usual policy provisions, such as obliging workers to report sickness to their manager on the first day and requiring medical evidence for longer absences. However this could imply a lack of trust and could cause difficulties as workers on holiday outside the UK might not be able to report sickness at the time and getting the required medical evidence might be difficult even if the holiday has been taken in the UK. This is quite apart from arguments as to whether this approach may amount to a detriment related to the worker’s statutory holiday rights.
It should be noted that the employer need only pay contractual sick pay if the worker would be unfit to do their job. An illness that simply affects the worker’s enjoyment of the holiday, such as a sprained ankle on a skiing holiday, need not be treated as sick leave.
Employers should review their contracts of employment and sickness policies to check that they allow for this development in the law and also to ensure that they have the right strategies in place to prevent abuse. This should include recording and monitoring sickness absence properly and making sure that workers know that any abuse could lead to disciplinary action.
