An employee rings in sick on a holiday, is this sick or still a holiday?Posted in : Seamus Says - Employment Law Discussion on 5 January 2018
Q. "If an employee rings in sick on a day they have previously requested off as a days' annual leave, should this be taken as a sick day or should it still count as a holiday?"
Keywords: Sickness and Absence; Annual Leave; Right to Recategorise
Scott: They booked it in advance. It's supposed to be a holiday. And then phoned in sick and said, "Hold on, I'm sick. I can't take my holiday."
Seamus: This has come back to some European decisions that were made quite a time ago. The basic position is that if I have booked off a holiday, if I have booked Monday off as a holiday and I'm sick over the weekend and I'm unable to attend work on Monday, but I would have been off anyway for holiday, I'm entitled to ring my employer and say I'm unfit and I'm sick and I'm entitled to not to be treated as a holiday and to take the holiday somewhere else, maybe further on down the line so that I'm not losing the benefit of my holiday. That's the clear position in terms of what European law has told us.
Scott: It's clear in case of case law. Legislation doesn't . . . it's not specified anywhere, but the fact is that if you denied somebody their entitlements, they could go to tribunal. Northern Ireland tribunals have been following all the European jurisprudence as well.
Seamus: Absolutely. This is the idea behind the cases of Stringer and Pereda at the time. But it can complicate the situation because you can sometimes have people that are able to go off on holiday while they're sick. Maybe they have a broken arm and they can still go on holiday. It's really about investigating and talking to the employee about the situation arising at the time.
The other thing you need to be careful about is these judgements only apply to the statutory holiday period. So, if the person has used their statutory end days including their bank holidays, usually they're left with the 20 days and they've already used that, it doesn't apply to those days above and beyond.
Scott: It may not even apply to the full 28. It might just be the 20th.
Scott: So the additional eight days that you get in the UK, I suppose the employer can say they don't apply, but then you end up with an inconsistency between what would be the statutory four weeks and whatever extra that you get.
Seamus: Yeah. And again, you're going back to the motivation of employees and agree that they're losing it on their holidays because they haven't been able to take them due to sickness.
Scott: The law gives the employees effectively the right to recategorise a holiday as sickness absence. They end up with a work sickness record. They may be disciplined or taken through an absence procedure because of that, but what about the reverse. You've got somebody who's off sick and they say, "My record is looking terrible. Can I use up holidays for that?" What's the situation?
Seamus: It's a decision for the employer, ultimately. I had some issues just from advising clients in the past in terms of where you maybe get your classic Friday/Monday person and they will ring in sick and they'll say, "I'd like to use this day as a holiday instead." You don't want the reverse happening in terms of people trading the days around the other way.
Scott: They won't get the benefit then of the holiday.
Seamus: Exactly. And also, then, it can create a culture of people saying, "It's all right because I can take the day and I don't need to give any notice for it or ring up in the morning. You do need to be careful about it, but the basis behind the case law is that holidays are there for people to recuperate, to have some downtime, coming from a healthy point of view and that they're entitled to take that.
Q. "If an employee phones in to say they are sick and wants to reclaim their holiday, can I insist on them producing a medical certificate to cover the sickness?"
Keywords: Sickness and Absence; Medical Certificate
Seamus: The basic position there is that again, go back to what your policy procedure is. The general position will be that if you're sick for longer than the seven days that you have to go and get a GP line at that point and that's a fitness to work. So, if your circumstances are for the one day that you don't require it, you can't just change it now because the person wants to not use it as a holiday instead. It would be the same threshold that would apply there.
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