Workers who are affected by illness on their holidays can claim the time back, under a little-known judgment by the European Court of Justice. If they ring in sick in the normal way, employees have the right to ask for annual leave entitlement to be ‘reallocated’ if their holidays have been spoilt by sickness.
Over the years there have been some concerns that some unscrupulous employees could take advantage of the ruling, says Vanessa Bell, head of employment law at Prettys.
The case law from Europe states that the purpose of a holiday is to have time for ‘rest and relaxation’ but unfortunately people do often fall ill when on holiday.
While many employers would always take a sympathetic approach, it can be difficult to determine if an employee is genuinely unwell.
They need to consider how the reported sickness prevented the staff member from enjoying this ‘relaxation’. For example, if you were to suffer a broken arm on holiday you probably wouldn’t be permitted to reclaim your holiday time because there is a reasonable expectation that you would still be able to rest and relax.
Obviously, it would be a different matter if you were to end up being ill for several days in hospital. The employer must establish if the worker wants the holiday to be reinstated. If so, the employee will receive sick pay. If they are only entitled to statutory sick pay, then they might prefer to not have the holiday rescheduled as they will receive less money. The employee has a choice between the two.
Employers should state in their sickness policies that if an employee is sick while away they have to report it immediately.
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We’d also recommend holding return to work interviews when they arrive back so the employee can legitimise their sickness.
As well as this, employers should monitor their staff’s sickness properly. If they start identifying patterns or trends among employees, then it could indicate that their sickness is not always genuine.
Employers should be careful if they are obstructive in allowing their employees to reclaim their annual leave.
There can be risks for an employer if an employee decides to make a claim against them. If an employer is obstructive about an employee reclaiming annual leave due to sickness a case could be brought against them regarding working time regulations, these are in place to ensure workers maintain a healthy work-life balance.
Employees may take cases to a union if they have one or to an independent arbitration body such as Acas.
