Here comes the sun

Summer has arrived and everyone’s thoughts are turning to their holidays. One issue for employers is what happens if an employee falls ill before or while on holiday?

The first thing to bear in mind is that there are three categories of holiday and these are subject to different rules:

  1. The minimum 4 weeks leave which is required under European Law and was provided for in the original version of the Working Time Regulations (WTR) – this entitlement is governed by the European Directive and the cases that have been decided by the Court of Justice of the European Union (CJEU)
  2. The additional 1.6 weeks provided for by amendments to the WTR which are subject to that legislation
  3. Additional leave in excess of 5.6 weeks the terms of which will be determined by the contract.

Scenario 1: An employee books holiday but is then taken ill before the leave starts

The European cases are clear that in this case the employee has the right to, in effect, cancel the booked holiday and to take it at a later time instead. This is the case even if that means that the holiday entitlement has to be carried over to the next holiday year.

But the WTR say nothing about this right to cancel. Moreover the regulations do not allow any carry over of the original 4 weeks of leave and only allow carry over of the additional 1.6 weeks if there is an agreement to this effect. Until fairly recently our courts and tribunals would just have looked at the WTR and said that if this did not accord with European decisions then the individual had the right to sue the UK government for not implementing the EU Directive properly. Now our courts and tribunals are much more mindful of their obligation to interpret UK legislation in the light of European decisions. That is so even if this means adding to or deleting words from UK legislation.

In simple terms what all this means is that employees in the UK do have the right to cancel holiday if they fall ill in advance of that leave. However, that right probably only applies in relation to the first 4 weeks of holiday in any leave year as that is the portion of leave to which the European legislation and cases apply.

In relation to the extra 1.6 weeks the WTR are silent on the main issue of cancellation, and carry over can only take place if this is covered in an agreement. As to additional contractual leave, that is entirely governed by the contract. What is important in both these situations is to have a clear policy as to how this will be dealt with and to apply that consistently.

Scenario 2: An employee takes leave but returns, maintains they were ill for part of the holiday leave and wants to claim back that portion and take it at a later date

Once again the European cases say that, so far as the mandatory 4 weeks of leave are concerned, the employee can do this and again if necessary can roll the leave forward to the following year. However, this presents much greater problems for the employer in terms of evidence and possible abuses.

A blanket refusal in these circumstances to reinstate leave is a dangerous strategy and is likely to lead to successful claims.

So what can employers do to protect themselves?

Here are some suggestions:

  1. Require employees to report sickness in the usual way even if this occurs while on holiday. This may not be practical in all cases but with the increased availability of IT a text or email message should be possible from most parts of the world.
  2. Require the employee to provide medical evidence of their illness. This will only be practical for short spells of illness if there is a contractual right to ask for such evidence. If such a right is in place this may deter employees claiming back for short periods of illness that are in reality the effects of too much “sun and fun”.
  3. Be clear as to what payments employees are entitled to receive while sick. Those who are only entitled to SSP are less likely to try to claim back time for illness as they will receive nothing for the three day waiting period and limited amounts thereafter. Where employees are contractually entitled to company sick pay a more sophisticated approach may be in order. Bear in mind there is only an entitlement to be paid if the employee is not fit to work. If the “illness” interferes with the holiday but would not prevent the employee from working then contractual sick pay is not payable.

Once again the position is less clear cut in relation to the extra 1.6 weeks of leave and additional contractual leave will be governed by the contract.

The best course for employers is to make sure that absence and holiday policies are robust so that employees are clear what they need to do if illness affects their holidays, and you and they are clear what they will then be paid.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.