Holiday Entitlement During Sickness

This ongoing issue has been reported on in previous 2012 editions of our e-newsletter and as has been previously said this issue is constantly changing through case law decisions. It has gone from “use it or lose it” to “ask for it or lose it” to employers now having to allow holidays to be rolled over into the next leave year even though the employee may not have worked at all during that period!

There is no doubt now that when an employee falls sick or is incapacitated whilst on holiday, that time may be taken at a later date and the employee paid SSP instead if they request it and provide supporting medical evidence.

Here at Alcumus we agree with many of our clients and employers view and option that this is open to abuse by the employee and could not agree more about your concerns on this subject. Nowadays much of our legal precedent employment law emanates from European Case decisions as decided by the Court of Justice of the European Union (CJEU) and as a member state of the EU we are required to incorporate these decisions into our domestic law whether we like it or not.

There have been a series of conflicting judgements regarding the entitlement to payment for holidays whilst on long term sickness absence and the most up to date judgement is that an employee on long term sickness (even though they may not have worked for you during that year) is entitled to be paid for their holidays year on year. To avoid a huge payment of any arrears if the employee resigns, retires or is dismissed for any reason it may be prudent to pay the holiday`s year on year. As holiday pay is considered as wages it would be regarded as an on-going deduction from wages under the Wages Act of which an employee can bring a Tribunal Claim against you for.

The conventional wisdom is to pay the last year`s holidays and thus break the on-going deduction argument. This will mean that the holidays accrued in previous years cannot be claimed. This is assuming of course that the employee in question has been off sick for a number of years. It used to be that under UK legislation holidays not taken in one year did not roll forward so an employee off sick for years and years did not accrue any holiday pay but did accrue years of service. Under such circumstances employers were happy just to let the employee sit on the payroll having exhausted all entitlement to SSP. The UK law has not been amended but is subject to EU judgements.

A clear case on the subject of holidays being re-allocated is that of Pareda -v- Madrid Movilidad (a Spanish Case) clearly decreed that if an employee is off sick immediately BEFORE a period of booked holiday and is still off sick at the time the holiday is due to commence then that holiday can be taken at some future date ie. re-allocated. Assuming the absence was covered by a medical certificate SSP would become payable.

However what happens if an employee becomes sick whilst on holiday? This is not always an easy question to answer and applying common sense does not always run alongside what a Tribunal may determine! Tribunals are often reminding us, so much“turns on the facts of the case” therefore it is advised to do indeed just that, and look at each case on an individual basis, a few examples are detailed here for your consideration.

If an employee goes to Spain for two weeks and at the end of the second week falls off the sun-lounger and breaks his arm should he be allowed to ask for those two weeks, or even the second week, to be taken at some future date because his holiday has been spoiled? Here are Alcumus we believe the answer is “No”.

A specific incident from a client was when an employee of theirs fell down some stairs in a hotel whilst on a coach tour of Scotland and broke her ankle; after it was set, and in plaster, she continued with the tour.The Employer refused to allow her to re-allocate her holidays; and we agreed with this decision.

Therefore if you find you are presented with a medical certificate covering any leave and are unsure if this holiday should be re-allocated period please phone your consultant and discuss the case.