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The Law When Employee Holidays & Sickness Coincide

View profile for Joan Casson
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Since the holiday season has now arrived, we thought it might be helpful to remind all employers about the interaction between sickness and holidays.

  • Employees will continue to accrue up to at least 4 weeks’ of the statutory holiday entitlement during periods of sickness absence. 
  • Employees who are ill during a period of annual leave may postpone that annual leave and treat that absence period as sick leave instead.  This rule applies whether the illness begins before or during the holiday period.
  • Holidays which cannot be taken during the holiday year in which they are earned may be carried over into the next holiday year if the employee is unable or unwilling to take annual leave during the period of sickness absence.
  • There are restrictions, however, on the carry over of holidays when employees are prevented from taking holidays during the current holiday year due to sickness absence:-
    • Only a maximum of 4 weeks of holiday entitlement for each holiday year must be carried over; and
    • Holidays must be taken within 18 months of the end of the holiday year in which the holidays accrue. 

If you are starting to think these rules are bit unfair to employers, just remember, “the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different.  It is given to the worker so that he can recover from being ill.” HM Revenue & Customer v Stringer and others [2009] IRLR 677 (HL).   An employee who is sick may not be able to fully rest and enjoy a holiday but there are restrictions to protect employers because there comes a time when leave may be delayed for so long that it “ceases to have its positive effect for the worker as a rest period and is merely a period of relaxation and leisure.”  KHS AG v Schulte [2012] IRLR 156 (ECJ). 

If you need any advice on this or other areas of Employment Law then don't hesitate to get in touch.