Can an employee be too sick to take holiday?

Most of us have been there. You’re getting excited for your upcoming holiday, getting last minute details sorted and then suddenly a cough or cold comes on. Most of us power through and end up having a good time, but what happens if it’s worse and you come back to work feeling anything but refreshed? Should you be entitled to reschedule your holiday – or even claim sick pay?

The European Court of Justice has said in a recent case that a worker who falls ill or becomes incapacitated before a period of pre-arranged statutory holiday should have the right to reschedule their holiday to a later date. As well as this, the court also suggested that the same should apply to workers who become sick whilst on holiday – not just before. Although a contentious suggestion, the ECJ later confirmed this in Asociacion Nacional de Grandes Empresas de Distribucion v Federacion de Asociaciones Sindicales & Ors.

It’s important to note here that the ECJ ruling only applies to four weeks’ holiday, and not the full 5.6 weeks’ statutory holiday or any contractual amount in addition to this. On top of this, there could be argument about whether the UK’s own Working Time Regulations already provides this.

Employees are becoming more aware of their rights than ever, and holiday rights come high up on the list. The ECJ’s decisions mean employers can expect to receive claims from employees that they should be paid sick pay and allowed to re-schedule their holiday. But this can put employers in a difficult position. With the risk of false claims out there, how can you prove your suspicions that an employee didn’t spend their whole holiday holed up in the hotel room? How sick do you have to be before a day in bed counts as sick leave rather than annual leave?

Our advice

Employers have to adopt a clear and consistent approach to avoid any arguments of unfairness or discrimination. The employer is going to have a tricky decision to make – do you follow the ECJ decisions (and the UK decisions following them) and allow employees with legitimate claims to reschedule their leave, or do you adopt a riskier approach and try to stick to the letter of the Working Time Regulations?

Employers are also going to need to be robust in many of these situations – whilst you may choose to allow employers to reschedule their holidays you need to protect yourself from abuse or manipulation. The best way to go forward is with clear, concise policies and expected standards of behaviour – such as asking staff to report and notify sickness in the usual way (even when they’re on holiday), having return-to-work meetings and not being shy to ask necessary question or request medical evidence.

You should also be keeping up-to-date records of sickness absence to review closely, which can help to identify patterns of ‘holiday sickness’. A judicious checking of the employee’s social media posts may another option, and questions should be asked if posting about a big night out and is struck down with ‘stomach flu’. As well as this, you should make clear contracts and disciplinary policies, and the serious consequences for any dishonesty.

The important thing to remember is to be clear, concise and consistent in your approach, with support from your contract of employment and holiday, sickness, equal opportunities, disciplinary, social media and data protection policies.

For more information, you can contact Alison here. For help with your documentation, click here.

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