Can An Employee Claim Back Holiday If They Were Ill?


The Law Of…Taking Annual Leave When Ill

If you get sick just before your annual leave then it's unlikely you'll return to work feeling refreshed. If your hard earned holiday was ruined by an illness that struck just before you left work, or while you were on the holiday itself, then should you be entitled to claim the period of leave back?

Deana Bates, Employment Law Solicitor, takes a closer look at the rules surrounding illness and annual leave.

The European Court of Justice Weighs In

In the Pereda v Madrid Movilidad case, the European Court of Justice (ECJ) stated that any employee who is incapacitated before scheduled annual leave should be eligible to reschedule the agreed holiday period for a later date. The ECJ went on to suggest that employees who got sick while on the leave itself should also be eligible to claim the holiday period back.

These decisions made by the ECJ only apply to the first four weeks of holiday granted under the Working Time Directive and not any additional period of annual leave which you may be entitled to. The Working Time Regulations do not clearly state whether or not an employee has the ability to claim back the holiday time, therefore guidance is currently taken from case law.

Employers in the UK may decide that they will take the same approach with the overall annual leave entitlement. This could differ between employers.

Will UK Employees Begin To Claim Back Holidays?

With employees in the UK becoming more and more aware of their individual rights in the workplace, it's likely that the UK will start to see an increased number of requests from employees to be credited for holidays which coincided with a period of sick leave and to receive sick pay instead.

Employers are expected to be aware of the position following the above ECJ case, but also to be vigilant in addressing each request from an employee as there is a risk that not all of these claims are legitimate. This puts employers in quite a difficult position, as it will be quite difficult to prove whether or not an employee was 'incapacitated' by a brief migraine, or simply did not leave the house during their leave and claimed that they were not well.

To avoid arguments of unfairness or discrimination, employers must adopt a fair and consistent approach to dealing with these requests. Employers should be clear from the outset with employees as to how they would address the matter of sickness and annual leave. This can be set out in a policy on annual leave, which can be amended in line with any changes to the law in this area.

How Likely Are You To Get Your Holiday Back?

Most employers are quite flexible in allowing employees to reschedule their holidays where the employee reports that the holiday was lost to illness. There will, however, be a degree of diligence required by employers when dealing with these requests, in order to address any illegitimate requests. Employees should be required to report sickness in the usual way, even whilst on holiday.

Return to work meetings should also follow upon their return, this could include direct questions regarding the illness and details of how it impacted on their holiday. Medical evidence may also be requested in some cases. These are all steps which may discourage employees from requesting a credit for annual leave unduly.

Employers must remember that even where an employee is signed off by a doctor as unfit to work, they are not necessarily required to stay at home. For example, an employee signed off work due to mental health-related illness may be actively encouraged by the doctor not to stay at home but not to attend work.

This highlights how it is a fine line between employers regulating any opportunity for employees to abuse this position and taking appropriate action where a request is made by an employee who wasn’t really sick. The chance of employees abusing the position of seeking credit for annual leave where they have been ill is lower where the company do not offer company sick pay.

Deana comments:

“Whilst it is very difficult for employers to allege that an employee was not ‘too sick’ to be able to take annual leave, employers should be transparent and consistent with the manner in which they approach annual leave and sickness. Other issues linked to annual leave and sickness include; accrual of annual leave during sick leave and also electing to take annual leave during a period of sick leave.”

“The legal position around annual leave is ever changing and employers should always seek advice where they are unsure as to how to respond to an employee request regarding annual leave. Employment lawyers can help employers muddle through the quagmire which is the law around annual leave and set out the options clearly, whilst offering practical tips on how to avoid confusion amongst employees.”

If you get ill on the eve of your holiday and are considering trying to request a credit for your annual leave, but are unsure about how to go about this, or are an employer facing such request, then a member of our specialist employment law team could help. Contact us today either using our Freephone number or by messaging us using our digital enquiry form.

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