Sick and tired – going on holiday!

If one of your employees was signed off sick by their doctor, and sent you a postcard from the Costa del Sol, I expect your hackles would rise. Like most employers, you would probably think somebody who was too sick to work should be too sick to go on holiday.

But it’s not quite that simple. For a start, somebody who is unfit to work due to stress or fatigue, or who is recuperating after surgery, may be perfectly capable of lying on a beach – in fact it may assist their recovery! Remember that somebody does not need to be confined to their bed to be unfit for work.

Furthermore, the law on sickness absence and holiday is pretty complex, not to mention confused.

The statutory right to paid holiday was enshrined in law in 1998 with the introduction of the Working Time Regulations, an offshoot of an EU Directive. Unfortunately, the law was not well-drafted, leading to contradictory Court rulings and ever-shifting interpretations of the legal position.

The current understanding is as follows:

• Entitlement to paid holiday continues to accrue during sickness absence
• It is not permissible to pay somebody in lieu of statutory holiday which they are unable to take because they are off sick, unless their employment is terminated before they have a chance to use it – in which case they are entitled to be paid for it as part of their severance
• In cases of sickness absence straddling more than one holiday year, holiday may be carried forward from one year to the next, but possibly not indefinitely (the Courts will need to clarify this)
• A sick employee wishing to take holiday must tell you they want it (e.g. complete a holiday request form), take the holiday (for which you must pay them) and then if still unfit to work, must get signed off sick again when they return…..

What employers should do:

• Avoid being over-generous with paid sickness in your contracts of employment. It could prove very costly!
• Allow a sick person’s accrued holiday to be carried forward and taken in the following holiday year if that’s their preference
• Consider allowing all employees to carry forward holiday to the following year, as long as it is used within 3 months, say, to avoid resentment on the part of healthy employees
• If somebody is off sick and puts in a request to take holiday, agree to it and pay it, and then resume your sickness absence procedures
• Do not let employees languish for lengthy periods on sick leave while remaining employed. Get medical evidence, establish a prognosis, and if recovery will be protracted or unlikely, terminate employment sooner rather than later - and pay any accrued holiday entitlement with good grace. If they eventually recover and have valuable skills and expertise, you can always rehire them

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As is often the case with employment law, “common sense” is not a good enough guide of how to respond to tricky situations like this. Carefully-drafted holiday and sickness policies are a must. For advice and assistance with this and any other HR topics, contact Mara Thorne on 01372 700139 or mara@mthorneconsulting.co.uk