Christmas holiday sickness: can an employee claim holiday leave back if they are sick over Christmas?

By Teni Shahiean, solicitor and CEO at OTS Solicitors

It is Christmas time! It is also the season for people to catch bugs and colds. Many employers think that if you book time off work and you are ill then it is just bad luck. Maybe some employers, who do not have the Christmas spirit, think it is better that an employee is sick in their own time, rather than at work.

Top London employment law solicitors are asked, in the aftermath of Christmas, how they should respond to employee’s claims of illness over the festive break and requests for an annual leave ‘refund’.

Holiday law: the basics

At holiday season, the best London employment law solicitors are always asked questions by employers and employees about holiday law.

The law says:

• An employee is entitled to a minimum of 5.6 weeks paid holiday each year. That is equivalent to 28 days holidays including bank holidays;

• An employer can offer more than 5.6 weeks of paid holiday to employees as a recruitment sweetener. If an employer says there will be more than 5.6 weeks of holiday in the employee’s contract of Employment, they are obliged to honour this unless they and the employee change the contract of Employment;

• Holidays should be taken at a time convenient to the employer. The employee does not have the right to take holiday time when they choose to do so;

• The general notice period for taking holiday leave should be at least twice as long as the amount of leave that an employee wants to take. Top London employment law solicitors say that this rule will not apply if there is an informal arrangement with the employer, different holiday policy or the contract of Employment sets out a specified notification period;

• An employer can refuse a holiday request if there is a business reason to do so, for example, lack of staff cover;

• An employer can refuse to give leave at a certain time; however, they cannot refuse to let an employee take their minimum leave entitlement for the year.

Claiming back holiday time as sick leave

The law says that:

• An employee who is ill during a period of booked holiday leave is entitled to transfer the holiday days when they were ill to a new holiday period when they return to work;

• If an employee cannot book new holiday leave within their annual holiday year then they can carry the additional holiday leave over into the following year;

• An employee who is ill during a period of booked holiday is entitled to be paid sick leave in accordance with their contract of Employment or the company policy on the payment of sick pay;

• If an employee asks to convert holiday to sick leave and the employee has not followed the employer's sickness absence reporting procedure, the employer can refuse the request.

The holiday pay policy

Top London employment law solicitors recommend that employers draw up a clear holiday policy so that employees know:

• What they should do if they become ill either immediately prior to booked holiday leave or during a holiday; and

• What they will be entitled to, such as replacement holiday and sick pay.

The best London employment law solicitors always emphasise the importance of employers ensuring that any holiday policy is consistent or subject to the employee’s contractual sick pay entitlement.

If an employer wants to change the employee’s contractual sick pay, they will need agreement from the employees.

Some employers want to make it less attractive to employees to convert holiday to sick leave, for example, by having a policy that says that if an employee is sick whilst on booked holiday leave they will only pay statutory sick pay and not occupational sick pay. Top London employment law solicitors say that can only be written into a holiday policy if it is consistent with or subject to employee’s contracts of Employment.

Employers who offer employees the facility to either:

• Carry over any unused holiday entitlement to the next holiday year; or

• Buy extra holiday entitlement in addition to their contractual entitlement.

may want to amend their holiday policy to say that individual employees can only elect to carry over or buy additional holidays in any given holiday year if they are not already carrying over holiday leave as a result of converting a holiday into sick leave.

Without this type of clause in the holiday policy document an employer could find that an employee could take off a substantial amount of time off in one holiday year. That could create staffing issues for human resource managers and additional costs to the company if temporary workers are recruited because the holiday leave entitlement is so extensive.

Abusing the holiday and sick leave process

Top London employment law solicitors tend to find that employers are always more sceptical about employee’s reported illness if the sickness occurs during a holiday, resulting in a holiday refund request on the part of the employee.

Employers can consider:

• Stating in their holiday and sickness policies that disciplinary action will be taken against employees if they are found to have abused the holiday refund policy as a result of a false claim of sickness whilst on booked holiday leave;

• Indicating in the sickness policy document that any sickness absence that takes place immediately prior to or during any booked holiday leave will count towards any trigger points the employer may have in relation to sickness absence levels;

• Having proper systems in place to record and monitor sickness absence and to track if absences occur on a regular basis. For example, absences occurring regularly during periods of booked holiday leave or after a holiday request has been declined for business reasons.

Holiday sickness – proof of sickness

employees only have to give their employer a doctor’s “fit note” if they are off sick for more than 7 days in a row. The 7 days include non-working days.

The fit note previously used to be called a sick note, but the name was changed to encourage employees to return to work with accommodations if they were able to do so.

The fit note will say the employee is either “not fit for work” or “may be fit for work”.

If the fit note says the employee “may be fit for work”, human resource managers should discuss any changes that might help the employee return to work. The employee must be treated as “not fit for work” if there is no agreement between the employer and employee on the changes.

The best London employment law solicitors think that the “maybe fit for work” fit note gives the employer the opportunity to carefully look at situations where an employee is asking to convert holiday leave to sickness leave. If, for example, an employee has hurt his hand on day one of his holiday then can the employee be helped to return to work, cancelling their holiday leave, with adjusted duties to take into account the hand injury?

How can OTS Solicitors help?

It is always tricky for employers to navigate through the holiday and sickness season and for employees to understand their holiday and sickness rights. It is inevitable that sometimes holidays and sickness will coincide, but top London employment law solicitors recommend that all firms have clear holiday and sickness policies in place so that both employer and employees know where they stand.

For advice on any aspect of individual or company employment law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London employment solicitors.