Although there is no legislation governing the question of how to treat sickness during holiday leave it has been the subject of recent European Court of Justice (EJC) rulings which suggest that companies need to think again about how they treat sickness during a period of holiday.
The first, Stringer, established that statutory annual leave continues to accrue during sickness, and there is nothing in the Working Time Directive to prevent paid annual leave being taken during a period of sick leave.
The second case, Pereda, the ECJ ruled that a worker who falls sick during a period of previously scheduled annual leave has the right, on request, to take that leave at another time, even if this means taking it outside the year in which the leave was accrued.
Whether you decide to take a low risk approach to this, and agree to abide by the rulings above, or take a hard line until it has been clarified in UK law, it is important to have a policy which clearly spells out what happens in these situations, i.e.:
• Whether the employee will be able to take any holiday that he or she has "lost" as a result of sickness at a later date
• whether the employee will be paid contractual sick pay (ie full or part wages/salary) or only statutory sick pay (SSP) during periods of sickness that fall at a time that would otherwise have been scheduled annual leave;
• what, if any, conditions apply to the rescheduling of annual leave in these circumstances;
• whether or not there is a requirement for the employee to provide a doctor's certificate covering the whole period of sickness;
• include a rule that an employee who falls sick while on holiday must notify the employer at the earliest opportunity that he or she is ill;
• what happens where an employee falls ill or is injured shortly before a planned holiday to the extent that the illness or injury prevents the employee from undertaking the holiday activities that were planned, but does not prevent him or her attending work.
See our Employee Handbook toolkit which now contains reference to this.
