Taking holiday while off sick
With the holiday season upon us, and many of us looking forward to our summer holiday. What are your employment rights if you are off work sick but have a holiday booked and paid for, can you still go and will your job be ok when you return?
There is nothing in law to prevent you from going away on holiday while you are certified sick from your employment. However, you cannot assume that the employer may not be justified in taking you to task about this if the nature of the holiday, or the activities engaged in while you are away, are incompatible with the stated reason for being unfit for work.
As an example let us assume that David is a hospital porter, a job which involves him being on his feet throughout most of his working hours, and doing a lot of walking. He had a fall at work while attempting to lift a very heavy patient, and has not only badly sprained his ankle but has also severely pulled a back muscle, leaving him in a lot of pain and with limited mobility.
If David decides to go on a ski-ing holiday while certified off sick with these conditions and the employer finds out, it would not be unreasonable for the employer to assume that either David is 'swinging the lead' (i.e. lying about his condition and possibly receiving sick pay under false pretences) or is recklessly endangering himself and thereby prolonging his absence from work. Disciplinary action could follow. However, if David and his wife book themselves into a seaside resort with the intention of doing very little other than perhaps sitting on the beach during the day and going short distances out to dinner in the evenings, he can legitimately say that he is taking the holiday in order to aid his recovery and recuperation. It would have to be a very unreasonable employer that found fault with this.
The fact that David has chosen to go to the seaside while recovering from his injuries and signed off sick will not entitle the employer to reduce his annual holiday entitlement by the amount of time that he is away. He would, though, only be entitled to sick pay during that time. However, we need to look at the possible scenario of David perhaps being short of money because of being off work, and only being able to afford the holiday if he is paid his full pay for the period.
Strictly speaking, the European Court of Justice ('ECJ') has ruled that employers cannot require employees to take holiday while on sick leave; it can only be taken on the employee's return to work. While being at variation with this ruling, in practice if the employee and employer wanted to agree to the employee being paid full pay and taking the time out of their holiday entitlement, there would be no-one with any interest in preventing this. The danger for the employer, though, would be the employee subsequently reneging on the agreement after returning to work, and in reliance on the ECJ's ruling saying that they were still entitled to take that period as holiday either on return or later.
Finally, we will mention what the law says about an employee falling sick whilst on paid annual leave. The ECJ has made it clear that falling sick while on paid annual leave immediately changes the employee's status to being off sick, and that the employee will be entitled to take the remaining period of paid annual leave on their return from sickness or later. Of course, if changing to being off sick in this way, then the employee's entitlement during the period of sickness will only be sick pay (Statutory Sick Pay or contractual sick pay, whichever is the higher) rather than holiday pay.
In practice, though, if the employee wanted to stay on full holiday pay after falling sick, there is nothing to force him or her to tell the employer about having fallen sick, although this might be a problem if the sickness lasts past the date on which the employee would be due to return to work following the booked period of paid annual leave.