Employment law: Sickness & holiday leave

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What happens with planned holiday leave if a person falls sick and cannot go or, alternatively, what happens to a person’s holiday leave entitlement when they are off sick for a long period? There appears to be a fair amount of confusion over these, sometimes competing entitlements. Misunderstandings have not been assisted by certain contradictions between European and UK case law – which have made this a bit of a legal minefield so if you are in any doubt, it would be wise always to seek legal advice.

An employee booked a holiday and just before the date of travel, sickness strikes. What happens to the holiday leave?

When a prearranged holiday coincides with sick leave, employees inform the employer as soon as reasonably practical. Employees should then be permitted to take their holiday at another time. If they remain sick until the end of that holiday-leave year, they can carry the entitlement through to the following year. It is however worth noting that, if an employee turns holiday leave to sick leave, they should expect to receive sick pay only.

If an employee is on sick leave but wishes to take a holiday during that time, are they permitted to do so?

The Working Time Regulations (WTR) allow employees to do so. Additionally, the law relating to carrying forward entitlement has been clarified recently confirming that employees continue to build up their holiday entitlements while they are off sick and that they do not have to take their holiday during that time. They can carry it over to the next year if they have not been able to take their holiday while sick. In a recent case known as Plumb v Duncan Print Group Ltd, the Employment Appeal Tribunal (EAT) ruled that the WTR must be read as permitting an employee to take annual leave within 18 months of the end of the leave year in which it accrued where they were unable or unwilling to take it because of sickness. The EAT also held that the employee is not required to demonstrate that they were physically unable to take annual leave by reason of their sickness in order to benefit from the carry-over. It is worth pointing out however that the decisions only relate to a person’s statutory leave entitlement; any contractual entitlement, over and above the amount allowed by law, would not be covered by these decisions. So, if a person was entitled to 30 days holiday leave (plus public holidays) under their contract, they would only be entitled to carry over the statutory allowance, rather than the full amount – in most cases where a person works a five day week; 28 days (including public holidays).

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