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?
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.
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.