How to deal effectively with sickness that occurs during or just before a period of holiday

Author: Lynda Macdonald

Summary

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• Bear in mind that there is no legislation governing the question of how to treat sickness during holiday leave, but that it has been the subject of European Court of Justice (ECJ) decisions.
• Take into account that public sector employees can rely on the ECJ's interpretation of the Working Time Directive through the principle of direct effect.
• Be aware that employment tribunals have ruled that, where an employee's holiday was affected by sickness and they were not permitted to retake the leave in the following leave year, this was a breach of the Working Time Regulations 1998.
• Devise and implement a policy to clarify the holiday entitlement of employees who fall sick or are injured while on or just before a planned holiday.
• Include in the policy whether or not employees in this situation will be entitled to contractual sick pay.
• Make clear what, if any, conditions apply to the rescheduling of annual leave in these circumstances.
• Make the production of a medical certificate a requirement for the policy to apply.