Checklist: staff taking holiday during sick leave

Checklist: staff taking holiday during sick leave

Legislation exists which allows workers to take statutory holiday while they are off sick. This means that workers on long-term sick leave can take holiday and be paid for it, even where they have exhausted their right to statutory and/or contractual sick pay.

Are sick workers entitled to take paid statutory holiday? 

  • Legislation exists which allows workers to take statutory holiday while they are off sick. This means that workers on long-term sick leave can take holiday and be paid for it, even where they have exhausted their right to statutory and/or contractual sick pay.
  • In a recent case, an employment tribunal decided that a worker who had been on sick leave for the last 15 months of his employment was entitled to statutory holiday pay for that period. The non-payment of holiday pay was regarded as an unlawful deduction from wages, even though the worker had not actually taken statutory holiday during the period in question.
  • Workers on long-term sick leave do not necessarily need to wait until the termination of their employment to request holiday pay. If you are notified that they wish to take statutory holiday on certain dates (and you do not refuse the request), your business will be obliged to make holiday payments at that time.

Can workers be prevented from taking holiday during sick leave? 

  • If one of your workers gives notice that they want to take statutory holiday on particular days, you can give a counter-notice which enables you to prevent them taking holiday on the requested dates.
  • However, there is little point in you doing this if your worker is unlikely to return to work in the current leave year. You will almost certainly be in breach of the legislation if you issue a counter-notice to prevent your worker from taking their holiday before the leave year ends. Your business may then be liable to pay compensation for a refusal to allow holiday to be taken. You may also be liable to pay holiday pay for the untaken holiday period when your worker’s employment eventually ends.

Why might you consider refusing holiday? 

Issuing a counter-notice could theoretically save your business money in some circumstances. For example:

  • One of your workers is on long-term sick leave and their contractual sick pay is due to run out in two months’ time. There are four months of the leave year remaining.
  • Your worker asks to take a period of paid statutory holiday that starts immediately after their contractual sick pay expires. If you do not refuse the request, your worker would continue to be paid beyond the contractual sick pay period.
  • Your worker’s illness is improving, and there is a good chance that they will return to work before the end of the leave year.
  • In these circumstances, you might decide to give a counter-notice rejecting your worker’s holiday request. Your worker would not be paid if they remain on sick leave after their contractual sick pay expires.
  • Your worker will have the opportunity to take the paid holiday on their return to work, before the end of the leave year.

If your business takes this action it could save a number of weeks’ pay. You could also argue that your business is adhering to the legislation as you would be ensuring that your worker enjoyed a “proper” period of holiday from work rather than a “theoretical” holiday period when they would have been absent in any event because of sickness.

What are the disadvantages of refusing holiday? 

However, there are a number of reasons why it might not be sensible to issue a counter-notice, which in most cases should discourage you from doing so:

  •  Your business may not gain much from refusing the request. You could pay your worker less when they are off, but you would then lose their services for a period of paid holiday after they return to work. Your worker could then take holiday at a time when you might want to focus on reintegrating them into the workplace.
  • Your worker might make a claim for constructive dismissal. This would be on the basis that you breached the implied contractual term of mutual trust and confidence by rejecting their holiday request merely to save money.
  • Your worker could arguably bring a disability discrimination claim.

You could put in place a general policy of not allowing holiday to be taken during long-term sick leave other than in the last few weeks of the year. This would at least mean that individual workers would not feel singled out.

Can workers be made to take holiday during sick leave? 

  • Legislation enables your business to give notice to a worker specifying the dates on which statutory holiday must be taken. Therefore, you could give notice to a worker on long-term sick leave to use up their holiday entitlement before their contractual sick pay runs out. If so, your business might be able to avoid making holiday payments later in the year when your worker’s contractual sick pay has been exhausted.
  • However, if the worker objects you should not force them to take statutory holiday during sick leave against their wishes. This is likely to be in breach of the legislation, as case law suggests that if workers do not wish to take holiday during sick leave the holiday must be granted at a different time.
  • A sick worker forced to take holiday at a time when other workers are not forced to do so might feel that your actions amount to a fundamental breach of contract, leading to a claim for constructive dismissal and possibly disability discrimination.

More information 

If you have any questions about the content of this checklist, please contact Alistair Wells or Rajan Berry. 

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.