Can an employee be too sick to take holiday?

26 Sep 2017 By Esther Langdon

If you fall ill on holiday and come back to work anything but refreshed, should you be entitled to reschedule your holiday – or even claim sick pay?

In Pereda v Madrid Movilidad, the European Court of Justice said a worker who is incapacitated before a period of pre-arranged statutory holiday should have the right to reschedule that holiday to a later date. Perhaps more contentiously, the court also suggested that the same should apply to workers who become sick during their holiday (as opposed to before). The ECJ later confirmed this in Asociacion Nacional de Grandes Empresas de Distribucion v Federacion de Asociaciones Sindicales & Ors.

It should be noted that the ECJ decisions apply to the four weeks’ holiday, not to the full 5.6 weeks’ statutory holiday or any contractual amount over and above this. Also, there is room for some argument about whether this is provided for in the UK’s own Working Time Regulations.

Employees are ever-more aware of their individual rights in the workplace. With holiday rights held among the most treasured, these decisions mean employers can expect to receive claims from employees that they should be re-credited holidays and be paid sick pay instead. However, there must be a risk that not all these claims are valid, putting employers in a tricky position. How can you prove your suspicions that an employee wasn’t wiped out by a migraine or 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?

Essentially, employers must ensure they adopt a consistent approach to such claims to avoid arguments of unfairness or discrimination. The first thing they should decide is whether they will follow the ECJ decisions (and the UK decisions following them) and allow employees with legitimate claims to reschedule their leave, in the next leave year if necessary. Or will they adopt a more risky approach and try to stick to the letter of the Working Time Regulations, simply commiserating with the employee that their holiday didn’t involve any rest and relaxation?

We find most employers are allowing employees to reschedule their holiday, but try to protect themselves from abuse or manipulation. This is where a degree of robustness is needed, and where clear policies and expected standards of behaviour can help – such as by asking staff to report and notify sickness in the usual way even while on holiday; having return-to-work meetings and not being shy of asking necessary questions; and obtaining medical certification and evidence where needed.

Employers should keep records of sickness absence and review these with a critical eye, looking for patterns of ‘holiday sickness’. A judicious checking of social media posts is also a good idea. Questions should be asked if an employee posts for all to see about a big night out and then is suddenly struck down by a bout of ‘stomach flu’ and tries to reschedule holiday. Contracts and disciplinary policies should also make clear the serious consequences for any dishonesty here.

A consistent and firm approach can pay dividends, and needs to be well supported by the contract of employment and holiday, sickness, equal opportunities, disciplinary, social media and data protection policies.

Esther Langdon is a lawyer in the labour and employment group at Vedder Price

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