I have an employee who has just come back from holiday who says he was sick for 3 days during the holiday. Can he now take these 3 days’ holiday at another time in the year?
All workers have a right to a minimum 5.6 weeks’ annual leave, which works out as 28 days’ holiday for those who work 5 days a week. Some employees may however be afforded more annual leave than this, as agreed through their contracts of employment. Whatever holiday arrangements are set out in the employment contract must be followed to avoid a breach.
Holidays are a statutory requirement set out in the Working Time Regulations 1998
, UK legislation created to implement the EU’s Working Time Directive. Such importance is placed on an employee’s entitlement to annual leave, because it is considered a necessary requirement for employee health and well-being. Holidays arguably improve working performance, because they prevent employees from getting too worn out and they allow employees to return to work rejuvenated and able to make a valuable contribution to their team.
Whilst the basic holiday entitlement
is set out in legislation, some day-to-day issues that arise from the way annual leave works in practice are not always clear. The issue of an employee’s future entitlement to annual leave where they have been sick during an allocated period of holiday has arisen a number of times; relevant case law can be considered in this situation. The Court of Justice of the European Union has recently ruled in separate judgments that if an employee becomes sick just before or during their holiday, the employee can ask to convert the period of holiday where they were sick from annual leave to sick leave. Sick leave
will obviously attract sick pay and not holiday pay
. The employee will then be entitled to take the missed annual leave at another time.
In order to convert the annual leave to sick leave, employees must follow the normal procedure in place for telling their employer that they are unwell. This would normally consist of informing the employer immediately and providing medical certificates, but the process outlined in the employee’s contract of employment or staff handbook should be consulted and followed. If, due to illness, an employee is unable to take all of their holiday entitlement during a particular leave year, the employee is entitled to carry forward that period of holiday to the subsequent leave year. Where an employee’s employment ends after being on long-term sick leave, any annual leave to which they are entitled from the current leave year or carried forward from a previous leave year can be afforded to the employee as payment in lieu of holiday. This may, carry some restrictions, including whether the employee returned to work and had an opportunity to take leave before employment ended, as well as potentially being limited to only the 4 week minimum required by the EU, and not the extra 1.6 weeks added by the UK Government since 2007.
For any further clarification, please call our 24 Hour Advice Service on 0844 892 2772.