Sick leave and holiday entitlement

Paid holiday and sick leave guidance has been published by the government after two major court rulings last year.

In the first ( Stringer v HM Revenue and Customs) the European Court of Justice (ECJ) ruled that workers off sick still accrue holiday leave. In the Second (Pereda v Madrid Movilidad) the same court ruled that workers falling sick while on holiday can reshedule their leave.

What effect might this have on your business?

In light of European Court of Justice (ECJ) judgments, a worker on sick leave is entitled to take statutory annual leave at the same time, if they wish.

If a member of your staff opts to take annual leave while on sick leave, you would have to pay them their normal holiday pay rather than company sick pay for the days that they wish to treat as annual leave. If their company sick pay period has ended, you should pay them their normal holiday pay rather than no pay.

If the worker qualifies for statutory sick pay (SSP), you would carry on paying the worker SSP during their annual leave. The SSP would count towards any holiday pay you pay them.

A worker is most likely to choose to take annual leave at the same time as sick leave in this way if they are:

• not entitled to contractual sick pay
• on sick leave for a considerable period, and have run out of sick pay

A worker can choose to have annual leave changed into sick leave if they become sick:

• while on annual leave
• just before they are due to take annual leave

If a member of staff goes sick while on or just before going on holiday they can then arrange to take the annual leave they missed at a later date.

In these situations, a worker will then be on sick leave. You will want to consider requiring evidence of their sickness in line with your usual sickness-absence procedures and any eligibility criteria for company sick pay.

For example, to qualify for full pay while sick, a worker could be required to inform you as soon as they reasonably can that they are sick and you could request medical evidence.

If a worker is unable to take all of their statutory annual leave entitlement within a holiday year because of illness, the ECJ judgments also mean they may be entitled to carry forward the unused statutory entitlement to the next leave year.

These judgements really kick in if you have a member of staff on long term sick leave. If they are being covered by SSP or have used up that entitlement (i.e. you aren’t paying them) it is easy to forget them. However they are still your employees and as such remain entitled to annual leave, a cost you may not have budgeted for.

For more information about sick pay or how to deal with a member of staff on long term sick leave, give us a call on 0845 224 0048 or email us. 

In light of European Court of Justice (ECJ) judgments, a worker on sick leave is entitled to take statutory annual leave at the same time, if they wish.

If a member of your staff opts to take annual leave while on sick leave, you would have to pay them their normal holiday pay rather than company sick pay for the days that they wish to treat as annual leave. If their company sick pay period has ended, you should pay them their normal holiday pay rather than no pay.

If the worker qualifies for statutory sick pay (SSP), you would carry on paying the worker SSP during their annual leave. The SSP would count towards any holiday pay you pay them.

A worker is most likely to choose to take annual leave at the same time as sick leave in this way if they are:

·         not entitled to contractual sick pay

·         on sick leave for a considerable period, and have run out of sick pay

A worker can choose to have annual leave changed into sick leave if they become sick:

·         while on annual leave

·         just before they are due to take annual leave

If a member of staff goes sick while on or just before going on holiday they can then arrange to take the annual leave they missed at a later date.

In these situations, a worker will then be on sick leave. You will want to consider requiring evidence of their sickness in line with your usual sickness-absence procedures and any eligibility criteria for company sick pay.

For example, to qualify for full pay while sick, a worker could be required to inform you as soon as they reasonably can that they are sick and you could request medical evidence.

If a worker is unable to take all of their statutory annual leave entitlement within a holiday year because of illness, the ECJ judgments also mean they may be entitled to carry forward the unused statutory entitlement to the next leave year.

These judgements really kick in if you have a member of staff on long term sick leave. If they are being covered by SSP or have used up that entitlement (i.e. you aren’t paying them) it is easy to forget them. However they are still your employees and as such remain entitled to annual leave, a cost you may not have budgeted for.

For more information about sick pay or dealing with Long term sick issues call us on 0845 224 0048 or email us