Sick leave or holiday leave? Know where you stand as an employer

The CIPD is warning certain HR legislation could be open to abuse and have far-reaching consequences – particularly for SMEs with limited resources

A European Court ruling recently found that Francisco Pereda, a Madrid council worker, was entitled to rearrange a holiday because he suffered an injury just before leaving for it.
Francisco took legal action against his employer after being refused permission to alter his holiday arrangements on account of his injury. The European Court of Justice ruled in his favour, stating he should have been allowed to change his holiday arrangements and given the option to postpone his leave.
The ruling is being interpreted to mean that employees who fall ill, or are injured, just before their holiday should be entitled to swap their current holiday with sick leave. They should be permitted to take their holiday at a later date.
In the UK, the Chartered Institute of Personnel and Development (CIPD) are warning this could be open to abuse and have far-reaching consequences – particularly for SMEs with limited resources.
This, of course, comes hot on the heels of other judgements concerning holiday rights, such as commissions and overtime being reflected in holiday pay. Although a couple recently caught claiming to have a sickness bug whilst on holiday and trying to sue Thomas Cook have just been jailed so hopefully that is a deterrent.
The fundamental principle behind such cases is that all workers are entitled to sufficient holiday breaks from work, and should not be prevented from taking them in anyway. In this most recent example it’s deemed unreasonable that ill health or injury should prevent much-needed recreational breaks.
Our advice is that if an employee is sick before, or whilst on, their annual leave, to let them reschedule it providing they follow your sickness absence rules. As an employer, you are unable to force an employee to take annual leave when they are eligible for sick leave. If they are on sick leave then they are paid in accordance with the company’s sick pay policy which may only be statutory sick pay. Any holiday may then be rescheduled in accordance with your holiday rules.
If you need help with managing annual leave or would like a review of your policy to ensure it is robust, give us a call. Just click the link below for more details, including how to contact us.

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Ian heads up the HR Dept Edinburgh & the Lothians team. The HR Dept specialises in helping SMEs with everything to with employment, through a local and personal service delivering practical and pragmatic advice and support. With nearly 30 years HR experience, Ian has a wealth of experience in helping businesses to ensure success through their people, be legally compliant and handle tricky people issues. As a business owner himself, Ian understands the challenges that come with running and growing a business. He is known for his ability to explain complex concepts simply and to make learning fun and enjoyable.