Employee Sickness and Annual Leave - Sick whilst on Holiday!

There is an area of the employment law which is developing, and could be of interest to those of our visitors who are actually sick whilst on annual holiday. It does not matter where you are having your holiday it seems!

There is currently a case being considered by the House of Lords - having been referred to the European Court - only to have it back to considered by the House of Lords.

There are basically two issues under consideration. One being that an employee is entitled to his or her holiday not taken as a result of long term illness, and one of an employee being genuinely sick whilst on holiday - annual leave!

Briefly >>>>

• For the long-term sick employee who is sick for so long that he or she is unable to take their holiday during the normal year, it has been determined that there is an entitlement to take the holiday in the following year. See below>>>
• For an employee who is sick during a time of normally scheduled annual holiday, then they have the right to re-schedule that holiday to a later date. See below. >>>>

Both areas are relatively new in having been bought before the courts for clarification, so the is a little bit of confusion at the moment, as employers try to change their policies (They will need to!) in light of the recently proven cases.

The Long-Term Sick Employee.

In a long-running case bought by the HMRC against Stringer, it has been determined that where an employee who is on long-term sick leave, has been unable to take his/her normal holiday because of that sickness, then they are entitled to carry forward to the next year, any holiday missed as a result of that sickness. Further to that, if there is a termination of employment after the period of sickness, then there is an entitlement for remuneration in lieu of the missed holiday opportunity. In the event that the employer does not pay this entitlement, then a claim for non-payment of wages can be instigated through the normal channels. Some employers may not be aware of this relatively new development of sickness in holidays, so the help of your trade union might be sought - after firstly alerting your (ex) employer to the situation and the law as now stands.

Sick Whilst on Normal Annual Holiday

The European Court of Justice has also found that an employee who has fallen sick whilst on a scheduled annual leave, should have the right to re-schedule that holiday to a later date. There has recently been an industrial tribunal ruling that this should be the case under the terms of the Working Time Directive. (The case concerned 'Pereda')

Going on from that, it has also been decided by an Employment Tribunal, that where an employee booked a holiday towards the end of the 'holiday period year' but then fell ill, he/she is still entitled to that holiday period - even if it has to be taken into the following holiday year. There should be no loss of holiday entitlement because of sickness.

Working Time Regulations - UK

As a result of both these cases, there is certain to be an amendment to the  Working Time Regulations for the UK. This will clarify the situation for all concerned - employers and employees alike. However, at the moment, the Employment tribunals mentioned, have come down firmly on the side of the European Court of Justice rulings, and found for the employee in both situations.

What now needs to be clarified, is to what exactly is meant by 'sick'! This especially if the employee falls sick whilst on a holiday abroad! An employer would have to furnish suitable evidence to prove that the employee was NOT in fact sick whilst on holiday.

What happens in the case of genuine sickness after a night out abroad, or even after a suspect meal resulting to a few days genuine illness is yet to be determined, but as the law now stands, sickness is sickness. The only onus on the employee seems to be that they take reasonable care not to fall sick! Sort that one out!

There is a minefield of ifs and buts as far as employers HR departments are concerned. Watch this space for developments and news as we get it. Better still, if you have experience of either of the above, then feel free to email us and we will publish your comments.