The European Court of Justice has recently ruled that employees who fall sick whilst on holiday should be entitled to reschedule the leave that they lose as a result of the sickness.
This decision is not surprising, given that an earlier case had held that an employee who fell sick shortly before going on holiday should be entitled to reschedule the holiday. However, the new decision provides an increased level of certainty for employers in relation to the position during (as opposed to before) an employee's holiday.
So what should employers consider when faced with an employee who complains that their holiday was ruined by illness?
- The ECJ ruling referred to statutory holiday leave. It is not yet clear what position the courts will take in relation to enhanced contractual holiday leave. An employer may therefore wish to specify that employees who fall sick on holiday will be deemed to have fallen sick during their contractual holiday entitlement. However, this could be a risky approach.
- More practically, an employer could insist on the employee abroad complying with the business's normal sickness absence reporting procedure if they wish to (and would normally be entitled to) take paid sick leave. In other words, they should call their manager from their holiday and report that they are not able to attend the beach that day, as they are suffering from a heavy cold. If the employee fails to do so, the employee would be technically absent without authorisation on that day, and they would not be entitled to any company sick pay. They would also not be entitled to holiday pay. As such, they would essentially be on unpaid leave. However, they would still be entitled to take the holiday at a later date.
- An employer could also include in their sickness absence policy that an employee seeking to claim holiday in lieu when they have been ill while away should be ready to prove their absence to the employer's satisfaction. While this could lead to claims of a breach of trust and confidence, particularly if the policy is not applied consistently and fairly, the employer could essentially require the employee to produce a doctor's note, even if they have not been sick for more than seven days.