In Shah v First West Yorkshire Limited, Mr Shah suffered a broken ankle that prevented him going on a pre-arranged holiday. When he returned to work, he tried to reclaim the days but was told they were “lost” as a new holiday year had begun. He raised a claim for this entitlement with the Employment Tribunal and won. The Tribunal stated their decision was based on interpreting the UK law so that it was 'compatible with the underlying thrust of the legislation”.
This case follows the line established by two recent cases from Europe and is again a warning to employers to be careful when dealing with situations where sickness and holidays clash. Although the decision is not binding on other Employment Tribunals it does perhaps provide an indication as to how Tribunals are likely to approach this issue.
It strikes me that an employer may wonder if an employee was really sick during their pre-arranged holiday leave. The position may well be clear if they are sick prior to the pre-arranged holiday leave with the period of sickness running into what would have been the leave period. However, if an employee claims they were sick at some point after the leave commenced the position may be less clear cut. In this regard I would recommend that employers' policies make it clear that if someone is sick during a period of leave then they should report the situation to the employer as soon as possible even though they are "on holiday". The policy should also require that a doctor's line is produced in the usual way and should reserve the right to refuse to allow the employee to take the leave at an alternative time if there is evidence that the employee was not ill. That said, if this decision is followed by other Tribunals, it is likely that an employer will require to err on the side of caution and allow the employee to take the leave at an alternative time unless there is clear evidence that an employee was not genuinely sick.