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How to deal with an employee falling sick while on annual leave.

July 2012
How to deal with an employee falling sick while on annual leave

A recent ruling by the European Court of Justice means that if a worker falls sick while they are on a period of statutory annual leave the employee can now choose to take the holiday days on which they were sick as sick leave and will be able to take the equivalent days of annual leave at another time. This will also apply if the worker has a period of sick leave that continues into a pre-arranged period of annual leave. The ECJ sums up the reasoning behind this decision as follows;

“the purpose of entitlement to paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different, since it enables a worker to recover from an illness that has caused them to be unfit for work.”

Although the UK Courts still have to rule on this matter, the UK Government is planning to amend the Working Time Regulations 1998, the regulations that implement the EU law in the UK, to take account of this ECJ ruling. Accordingly the sensible approach for private sector companies is to ensure that they provide for employees who are sick while on holiday to be able to take that holiday at another time.

There has been some concern that this could encourage abuse by employees. An employee could potentially go on annual leave and claim that they were sick when they were not in order to obtain further holiday entitlement. In order to help prevent this it is important to have a well drafted sickness and absence policy which clearly details the requirements for employees to notify and evidence periods of sickness. It is sensible to make sure that employees have to notify their line manager of their sickness within a short period of time and to regularly update their line manager as to the progress of the sickness. There should also be clear guidance on what evidence is required and after how many days of sickness.

The Simply-docs Sickness and Absence Policy also includes a more detailed notification procedure for employees to let their employers know that they are sick, and a more detailed return to work procedure.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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