Sickness vs Annual Leave

How you should treat employees who are off sick during their annual leave comes from the Working Time Regulations and is based on the principle that employees in the UK have a legal right to 5.6 weeks of paid time off work each year.

The spirit of the law here is important, not just the letter of the law. The courts have consistently interpreted it such that employees have a right to restful time off that genuinely affords them the opportunity to rest and recharge when away from work.

Based on this, where an employee is off on annual leave and during their leave becomes sick (i.e. wouldn’t be fit for work if they were not on leave) then they have a right to take this as sick leave and have the annual leave entitlement returned to them; the theory being that it is not true ‘time off’. So, if an employee is sick while on leave, this time off should be logged as SSP rather than deducted from their annual leave entitlement.

An employee may, however, opt to use their annual leave while they are sick. The reason for this is that if they would only receive SSP while off sick their pay will be reduced if they are not working and using annual leave prevents this loss. However, take care not to be seen to encourage staff to do this as they can then claim they are not receiving their statutory annual leave for R&R purposes!

As a matter of good practice, we would always advise having clear processes in place so there are clear expectations about when sick leave may be substituted for annual leave. Employees should ring in in the usual way to report that they are sick and not fit for work, and if their sickness lasts for more than a calendar week they should also provide fit notes in the usual way.

You are well advised to avoid a situation where an employee returns from a period of leave and then informs you that they would like some or all of the leave reclassified.

One final thing to note is that if an employee cannot take all of their annual leave in the leave year due to sickness, then this should be rolled over to the next year and you can insist that it is taken within a certain time period, usually Q1.

This week’s blog, written by Michael Mason, first appeared in Summer 2019 edition of PeopleTalk, the quarterly newsletter from DOHR.

Michael is an HR advisor who has been with DOHR since March 2017.

Providing our clients with day to day HR support, Michael is an employee relations specialist with a Masters in Human Resources Management.

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