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When annual leave and sickness coincide
Employees typically look forward to their annual leave as a time to rest and recharge. However, there are times when sickness and holiday overlap, presenting employers with a series of challenges.
In this blog, we answer some common questions employers face when annual leave and sickness collide.
What happens if an employee falls sick while on holiday?
Unfortunately, we can’t choose when we fall ill. Few things are more frustrating than becoming unwell during annual leave – turning a well-earned break into days spent recovering. For instance, imagine an employee gets sick on day two of a five-day holiday. Instead of enjoying their time off, they’re bedridden. When they return to work, they ask to reclassify those days as sick leave, hoping to recoup their annual leave and take it at another time.
Many organisations don’t have clear policies addressing these situations, yet it’s a scenario that crops up more often than you might think. So, how should employers respond when sickness and annual leave coincide? Should you allow employees to rebook their annual leave – bearing in mind that if you offer enhanced sick pay, this could come at a cost?
According to Acas, if an employee falls ill while on annual leave, they must notify their employer if they want to reclassify any of that time as sick leave. The employee then has two options:
Claim statutory sick pay for the days they were unwell (if they qualify for it); or
Save their holiday and take it at a later date.
An employee who is incapacitated both before and during annual leave can have their time off re-categorised as sick leave.
How should employers respond when sickness and annual leave overlap?
If an employee falls sick while on holiday, employers should:
Ask them to report sickness in line with your reporting requirements, which should be outlined in your annual leave policy.
Conduct a return to work interview to assess the nature of the illness and whether the employee is fully recovered or if their condition persists. This helps determine the next steps.
Request medical evidence, such as a GP note or an Occupational Health Report, to support their sickness claim.
Things to consider
There are a number of things for employers to keep in mind when faced with this situation:
If the employee didn’t notify you they were sick…
If the employee didn’t follow the usual absence reporting procedure, consider their circumstances before making a decision. For example, they may have been seriously ill while abroad and unable to report their sickness. In this case, requiring evidence may be reasonable, but fairness and practicality should guide whether their leave is reclassified.
If you offer enhanced sick pay…
If your organisation offers enhanced sick pay, it’s likely a contractual right. This means that if your contracts allow employees to reclassify annual leave as sick leave after the fact, and you want to remove this option, it would count as a contractual change – usually requiring consultation with staff.
Before making any changes, employers should check existing contracts and policies to see if there are any restrictions or requirements they need to follow.
If the employee wasn’t ‘sick’…
Being unable to go on holiday doesn’t automatically mean an employee qualifies for sick leave. If they broke their ankle before a skiing trip, for instance, they might not be able to travel but could still work – from home if not from the office.
Employers should assess each situation individually and ensure their decisions are reasonable, align with company policies, and are consistent with how similar cases have been handled in the past.
If the employee has unused leave…
Remember, if employees are unable to take their minimum four-week statutory leave entitlement (the EU-derived portion of leave) due to sickness, they must be allowed to carry it over into the next 1.5 leave years. This right stems from case law, including rulings from the European Court of Justice, which established that employees who are unable to take statutory leave due to illness must be allowed to carry it over.
If leave is reclassified…
If an employee’s leave is reclassified as sick leave, their absence should still be recorded in line with your organisation’s absence management policies, such as using the Bradford Factor or other tracking methods.
What if we suspect their sickness isn't genuine?
If you have reason to believe that an employee’s sickness claim may not be genuine – for instance, if they’ve posted pictures on social media appearing happy and healthy while on holiday – this could constitute misconduct and requires investigation.
You should only proceed with disciplinary action after conducting a thorough investigation and gathering credible evidence. If necessary, seek advice from an Employment Law Adviser first to avoid missteps and help you navigate the process.
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What can we do if an employee requests to take holiday during a period of sickness absence?
On the flip side, an employee may request to take annual leave during a period of sickness absence, often because they no longer qualify for statutory sick pay.
While employees have the right to choose when to take their leave, even during sickness absence (subject to notice requirements), employers can issue a counter notice and refuse the request.
Keep in mind, however, that if you refuse and the employee is unlikely to return from sickness absence in that annual leave year, you could be acting in violation of the Working Time Regulations.
Final thoughts
Ultimately, employers should remember that annual leave is meant to give employees a chance to rest and recharge. If illness prevents them from doing so, it’s reasonable to allow them to take their holiday at a later date.
That said, having clear policies and applying them consistently is key to maintaining fairness, preventing misuse, and avoiding operational challenges.
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If in doubt, seek advice
If you’re unsure about how to handle a specific situation involving sickness and annual leave, it’s always safest to speak to an Employment Law specialist to avoid missteps that could lead to disputes or Employment Tribunal claims.
Our experts can provide practical advice tailored to your circumstances, ensuring you handle these matters fairly, legally, and with your business’ best interests in mind. We can also draft clear policies and deliver training to managers, putting you on the front foot.
For support, get in touch on 0345 226 8393 or request your free consultation using the button below