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Ask the expert: Holiday on sick leave?

26th Jan 2010
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Ask the expert
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Ask the expert

Can an employee go on holiday when they are on sick leave, and if so, what are we supposed to pay them? Martin Brewer and Esther Smith advise.

The question: Holiday on sick leave?

An employee on long-term sick leave (work-related stress) obviously accrues his/her holiday entitlement during this absence. However, during this time if the employee actually went away on holiday for two weeks how would you treat this? Allow to accrue and take the two weeks at the end of the sick leave, pay out or just note they were signed off sick but annual leave was taken which had been requested before they actually went off sick. Any advice?

Legal advice:

 
Martin Brewer, partner, Mills & Reeve
 

An employee who is off sick but who goes on holiday (and it is irrelevant whether requested before the sick leave or during it) is simply to be treated as off work for both sickness and holiday at the same time. Thus, if the employee is in nil pay, for the 'holiday' they get 2 weeks full pay but continue to get nothing for the sickness absence. If they are in receipt of half pay or SSP, simply top up the amount to full pay for the holiday period. 

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.

* * *

Esther Smith, partner, Thomas Eggar
 

If an employee notifies his employer that he wishes to be 'on holiday' for a period during his sickness absence, then the employer can treat that period as holiday, and pay the employee accordingly under their contract, for that period. However, if the employee has not notified the employee that they wish to take some of their accrued holiday then the employer is perfectly justified in continuing to treat the employee as being off sick during this time, and paying them sick pay (if any) during this particular period. 

Annual leave does accrue during periods of absence for long term sickness, and technically there is nothing to stop an employee taking that time as holiday during the year, even if they remain signed off as unfit for work either side of that period of annual leave.
 

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.

Replies (10)

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By TerryLucas
27th Jan 2010 14:27

I think this article should also have covered the scenario where an employee on booked holiday states that they are/were sick during this period.

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By mr glide
29th Jan 2010 11:17

Recent clarification from the UK Supreme Court, following the Stringer v HMRC case, provides scope for the employee to prebook annual leave in the normal fashion, and to take that leave even if they go sick.
Payment is quite straightforward as explained in the previous responses; that is, depending on the rate of sick pay currently being paid, a payment to make up the difference to the rate normally received during annual leave would apply. As far as I Know, this ruling applies to STATUTORY paid leave as defined under the UK Working Time Regs; if anyone would care to clarify this...
Also worth a mention, is the validity of doctors notes during the period of concurrent sick and annual leave. Continued cover would treat the sickness as one continuous period. If the notes stop, however, resulting in a break in dates, then the employee should be aware that a resumption of sick leave after the annual leave has ended, would most certainly warrant a new period of sickness, along with any contractual procedures the employee would be expected to comply with.
Rather bizarrely, and not long after this ruling, the ECJ ruled in favour of another case (Vicente Pereda vs Madrid Movilidad) confirming an employee's right to pre book annual leave, then claim the affected days back if they fall sick prior to or during that leave period.
As a result of these two cases, one can conclude that an employee has complete control over their leave commitments whenever they coincide with a period of sickness.
Needless to say this will raise eyebrows amongst employers, naturally anxious that some, shall we say, less work ethos aware employees, will see this as an opportunity to maximise their time away from work, especially if they also receive contractually paid sick leave. It's clearly a win/win situation for employees, whichever way you look at it.

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Replying to mr glide:
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By paradk
18th Jul 2019 18:36

Re the reference to continued cover, does this mean that an employee who's been signed-off for two weeks because they cannot perform desk based duties (after breaking an arm for example) can take a weeks holiday involving travel, then continue to take time off after they return until the doctors note expires? Is there not a case for saying that if they're fit enough to travel then they should be fit enough to work?

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By Kate Thomas
24th Feb 2011 09:57

Hi,

I have an employee on long term sick, the SSP has long ended and we are approaching our financial end of year.

The other staff will be given a pay increase in line with inflation - does this apply to the sick member of staff?

Will I have to include this in any redundancy pay if their contract is terminated?

Do I need to pay them the holiday pay due for this year or carry it over?

Please Help!!

Thanks.

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By TracyTaylor77
13th Dec 2017 10:12

I have been signed off on sick for 2 weeks due to stress but have a holiday booked i have been told by doctor to still go. My employer has contacted me to arrange a home visit but I didn't think contact was allowed because of causing more distress?

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By Brickie72
18th May 2018 18:47

Would you consider this unlawful dismissal. Employee books holiday for January 2018, I week, back in August 2017. Subsequently injuries himself at work and developes work related stress anxiety and is signed off long term sick. Whilst on sick leave he continues to take his leave and goes to Spain. He continued to take his leave as he beleived, as did his gp, that thus might help. On returning he is invited into an investigation meeting and hr advisor is recommending dismissal as he did not inform the company and get permission. Questions I would ask is the credibility of the hr manager and if dismissed would this be considered as unlawful. He completed more than 2 years and more than 16 hours per week.

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Replying to Brickie72:
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By Democratus
21st Sep 2018 15:42

If the holiday was booked and approved then the subsequent sickness period has no relevance as to where or why the holiday was taken. You state that the reason for the investigatory meeting was that permission was not granted. There is some disparity here with the narrative.

If the permission was granted, as I have assumed in my response that no meeting was needed under the guise of failing to ask permission.

There appears, on the meagre facts presented, no reason for dismissal.

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By ehtesham.phd
08th Feb 2019 11:41

Hi everybody. In Indian context I wan to know more about ''sandwich leave policy''. What government low says and who are the companies practicing this policy.

Thanks

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By Kirin Burman
03rd Mar 2019 01:13

I know this might be a longshot, but I really hope you will be able to help me out with this.
I will be going to obtain diagnosis and possibly treatment outside EEA (destination India - I am British Citizen) I do understand that ​neither the S2 route nor the EU Directive route applies to treatment outside the EEA, but what I wish to inquire about is if UK Law specify that I have to call off sick at my work or should I use annual leave for such purpose. Common sense would be if I am going to obtain only the diagnosis then I should choose annual leave route, but because I will be going for an entire month a befriended doctor of the family in India said that there is a high possibility I will receive the Treatment too.
Can You please advise me on this conundrum.

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By Jaf
13th Mar 2019 12:25

Hi
I've been off work for over a Month with LRTI and had antibiotics for this and cheat X ray for possible pneumonia. Week later still not better so attended up appointment again was told not only did I ha e LRTI I also had URTI and given more antibiotics still time passed and im stil not right with low temp 34.4 attended again for gp appointment and blood test taken. They cam back clear bit temp still low, dizziness nausea etc. Attended again at gp and he said im not well at all and said i need to rest completely and said i have Post infectious fatigue and issued me with note for 1 months absence from work. My partner has booked a break away for complete relaxation during this month's sick leave couldbi get dismissed from work if I go on this break away of I'm on the sick. My employer has stated when my sick note was dropped into them that they want to arrange a meeting to discuss my absence

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