Sick on holiday – reclaiming holiday leave

The European Court of Justice had said that a worker who is incapacitated before a period of pre-arranged statutory holiday should have the right to reschedule that holiday to a later date. The court also suggested that the same should apply to workers who become sick during their holiday (as opposed to before).

Employees are ever-more aware of their individual rights in the workplace. Employers may therefore receive claims from employees that they should be re-credited holidays and be paid sick pay instead. However, there must be a risk that not all these claims are valid, putting employers in a difficult position. How can an employer prove that an employee wasn’t ill on holiday?

Essentially, employers must ensure they adopt a consistent approach to such claims to avoid arguments of unfairness or discrimination. Clear policies and expected standards are required – such as by asking staff to report and notify sickness in the usual way even while on holiday; having return-to-work meetings and obtaining medical certification and evidence where needed.

Employers should keep records of sickness absence and review these, looking for patterns of “holiday sickness”. Contracts and disciplinary policies should also make clear the serious consequences for any dishonesty.

A consistent and firm approach supported by firm policies and clear communication of expected procedure should reduce any false claims of holiday sickness.

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