Illness and annual leave: Taking leave of sickness absence

Going on holiday is so exciting. The booking is made months beforehand. Skiing? You’ll be looking at brochures in August. Diving the tropical coral reefs? Probably in October. However exotic the holiday, the same skill is needed to plan it, as well as negotiate the other hurdles – the ‑holiday calendar at work, the holiday calendar at your partner’s work, school holidays, public holidays… It can make a person sick simply trying to make a booking.


But what happens if someone falls sick while they are on holiday? Do people send postcards any more? Nowadays a message sent by mobile phone or e-mail is just as likely. In that case, the HR department could receive a text, with or without a photograph: “Ill in India.” “In hospital in the Hebrides.” “Broken neck – being repatriated.”


The list of ailments that can afflict the holiday-maker is long. If it can be caught, twisted or broken, it happens.


When someone falls ill during the ordinary working week, there are absence reporting procedures to be followed and a certificate is needed to show the reason for non-attendance. Short absences are, in most cases, covered by a self-certificate. The result of reporting ill health is that, first, the employee can avoid being disciplined by complying with absence reporting procedures. Second, certification will trigger contractual sick pay, if applicable.


For employers, the report becomes part of the personnel file in which a pattern may show frequent health-related short-term absences or extended long-term sickness absence. Too many short-term absences or long-term absence can lead to capability procedures, and potentially dismissal. However, the holiday sickness report has taken on a new meaning since the recent case of Pereda v Madrid Movilidad SA.


In sickness and in health on holiday


The European Court of Justice (ECJ) decided that where a worker is taken ill during a period of pre-planned annual leave, annual leave must be granted to them for a different period. If, because of the employer’s commitments, leave cannot be taken in that year (for example, if all leave is taken during annual factory closures), it must be deferred to another year.


The Working Time Regulations 1998 (WTR) specify that paid leave cannot be carried forward into a subsequent leave year. However, the effect of Pereda is that the part of the WTR which limits leave to a single leave year is brushed aside: if a worker is prevented from taking the leave deferred by sickness during the current holiday year, they can carry it forward to the next one.


There are practical implications for companies with staff whose holidays are governed by the WTR. No doubt the HR department will be looking for contractual arrangements to be put in place to clarify how the company will deal with the issues involved when employees become sick during annual leave periods. One thing is certain: the occupational health (OH) departments will be involved in the management of ill-health cases and will be expected to look at the past records of ill health as well as the current situation. Unfortunately for the employee who is genuinely taken ill while on holiday and wishes to defer the ‘lost’ leave days, every report will now have to be carefully scrutinised.


Management of sickness on leave


Employees will report ill health for the benefit of sick pay, if available, and for the substitution of further days of paid leave. The ECJ has not specified the degree of illness required, but it is reasonable to propose that the holiday sickness should be treated in the same way as illness at work. If an employee is ill at work for part of a day, it does not count as a day’s sick leave, so if someone is ill on holiday for an afternoon or morning with a trivial complaint, that should not attract compensatory paid leave.


Doctors will have to decide whether an illness is serious or trivial. If we assume all doctors throughout the world have the interests of patients, the public and the profession at heart, it is unlikely that a doctor will tell lies on a medical certificate or sign a certificate that supports a fabrication.


OH advisers should be aware that many employers are considering amending absence reporting procedures to include references to reporting sickness while on holiday leave. Any condition resulting in alleged loss of holiday must have a proper diagnosis, treatment must be explained, and a prognosis given. This can only happen if a formal medical certificate is provided, stating when and where the patient attended for treatment, and that an examination was carried out.


The company is entitled to reject a certificate which covers a report of an illness or symptoms which occurred days earlier and which the certifying doctor has not observed. This has always been the case where, for example, an employee takes sick leave immediately on conclusion of the defined paid holiday leave period. Cynics may want to insist that the doctor confirms he is not related to or a friend of the patient.


Doctors in the UK provide absence certification which is often free. On holiday, it is likely that the patient will have to pay for a medical certificate. The employee claiming replacement of their ill-health holiday days must provide the certificate at their own expense.


Investigation of sickness on holiday


Many contracts of employment provide for sick pay for a period of time. An employee taken ill while on holiday may wish to invoke sick pay provisions as well as postponing lost leave days. Arguably, it is important that the employer also considers whether the employee has undertaken risk voluntarily by doing dangerous activities such as skiing, running with bulls, or diving with sharks – there is room for lots of creativity where risk applies.


OH advisers can advise managers about whether an injury was the result of recklessness or bad luck, and whether the results were sufficiently severe to make the holiday no longer viable. One important piece of evidence that would be worth considering is whether the trip had to be abandoned: a return flight in an air ambulance would be a pretty strong indicator that the holiday had come to an unpleasant and premature end. This might trigger sick pay during the holiday period.


Employers’ main concern will be the risk of abuse of the process. As soon as the text from Tenerife arrives, the personnel file should be examined with the assistance of OH to identify patterns of absence. It is a good idea to check whether the employee is one who has, before Pereda, returned late from holidays on a regular basis, citing diarrhoea and vomiting, nausea, cramps, giddiness, and so on. And do they have a pattern of illness on Fridays and Mondays?


There may be disciplinary or performance issues to be addressed if someone with a dubious sickness record extends the process into holiday sickness. Any attempt to carry out what would amount to fraud may be prevented by the mandatory requirement for the provision of a formal medical certificate.


The way forward


The ECJ has been having a lot of fun with holidays and ill health. Not long ago, it decided in the cases of Schultz-Hoff and Stringer that a worker on sick leave is entitled to accrue annual leave while on long-term sick leave. Individual EU member countries can decide whether paid leave should be taken during sickness absence, but the effect of Pereda is that the employee can now decide whether to take a holiday from statutory sick pay and enjoy paid leave at their normal rate, or wait until they have recovered and take whatever leave they have accrued during their period of incapacity.


Genuine cases


Although the ECJ decisions seem to open a charter for malingerers, they also make for a fair way to ensure that a person is treated properly if taken ill. After all, if someone breaks a leg the day before they are due to take leave, the holiday will be cancelled, and the honourable way for the employer to deal with the situation is to permit leave to be postponed if the situation, as with any sickness absence, is properly certified.


In the Pereda case, Pereda had an accident at work (in the public sector) some weeks before his allocated holiday of 16 July to 14 August 2007. He was not fit to resume work until 13 August 2007. His sick leave and holiday coincided. When he applied for a later period of leave, the employer rejected the application out of hand. The Spanish court applied to the ECJ for guidance on the application of Article 7 of the European Directive 2003/88 on working time.


The judgment has the effect of putting holiday entitlement into tablets of stone. Paid leave is a health and safety entitlement, allowing the [healthy] employee to recuperate from the stresses of their year of work. European jurisprudence indicates that sick leave is different: it allows the [unhealthy] employee to recover from an illness or injury.


Employers would be wise to make provision for proof of illness, particularly in the public sector, where Pereda will have a direct effect. It may be more difficult for an employee in the private sector to enforce a carry-over of paid leave to another year, but that will eventually become academic. Last April, the Working Time Regulations were amended to allow carry-over of up to eight days, and the future can only allow for more.


Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn and Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.


Any enquiry about this article may be made to Joan Lewis at joanlewis25a@btinternet.comTelephone: 020 8943 0393

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