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20th August 2013

Dreadful holiday – sick the whole time!

Employees who claim they were sick while on holiday may ask to take the holiday at another time. You will not necessarily have to allow it, but the rules are complicated!

Holiday entitlement can have three components. 20 days arises from (European) Working Time Regulations (WTR), a further 8 days from UK legislation and many employers add further contractual holiday perhaps with service.

Before an employee can claim sickness they need to comply with your reporting procedures (whether on holiday or not).

But, so long as they do this, they are entitled to at least 20 days actual holiday (under the WTR). If the illness is extended, employees may be entitled to carry that component forward to another year.

The additional 8 days is open to question as there is no clear guidance in the form of legal cases. However, employers would be reasonably safe to assume that an employee on holiday for a week, but who is sick, would not be entitled to carry that holiday forward for another time.

Similar assumptions could be made in relation to any additional contractual holiday pay. Ideally, of course, the contractual documents should make this clear but that is not normally done.

It is important to remember that this is one of the least certain areas of employment rights. If you decide to err on the side of caution that is understandable. But you could be setting a precedent which, if you have many employees, you may not wish to do.

Malcolm Martin – QCS Expert Contributor on Human Resources

*All information is correct at the time of publishing

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