What Happens if You are Sick During a Period of Annual Leave?

A recent European Court of Justice ruling which states that an individual who has fallen ill during or shortly before a period of annual leave is entitled to take that annual leave at another time and that the time off work may, instead, be classed as sick leave, has caused a bit of a stir in Government.  Vince Cable, the Business Secretary, has been publicly stamping his feet about the judgment and, in an attempt to appease business owners, has stated that he will defy Brussels on this one.  The question I ask, however, is why all the fuss?  I cannot envisage a situation where employees are going to be rushing into work after their holidays with a sick note from their doctor simply so that they can take more holiday at a later date.  Quite simply, they are not going to be able to afford to do so.

Other than Statutory Sick Pay (“SSP”), the right to which only kicks in after 3 days’ consecutive sickness in any 8 week period, any right to be paid during periods of sickness absence is a contractual right only, and it is therefore up to the individual employer to decide whether or not to make provision in the contract of employment for company sick pay to be paid on top of SSP.  However, even where employers do pay company sick pay, in the private sector it is very rarely a contractual entitlement and even if it is, it is normally for a very limited period.  More often it is stated to be a discretionary payment.    Therefore, for the majority of employees in the private sector, when they are sick they get SSP only whereas when they take holiday, they are paid their normal salary.   For that reason, the majority of employees will not seek to re-arrange their holidays for a later date as that will mean that they are significantly worse off financially.  If they are sick whilst on holiday, they will undoubtedly react as they have done to date – by being disappointed!


About Belinda Lester
I am the managing director and founder of Lionshead Law, a boutique virtual law firm specialising in employment, immigration, commercial and IP law.

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