There has been a lot of case law in recent years on an employee’s rights to annual leave in circumstances where the employee is off on long term sick and it is an area of law that employers often ask about.
In a slight departure from the normal layout of these articles, this article sets out some of the most commonly asked questions and gives brief answers to each question. For more details on any of the questions or to ask another question regarding this matter, please get in touch:-
Is an employee entitled to accrue annual leave during periods of sickness absence?
Yes. Annual leave entitlement continues to accrue during periods of sickness absence. Further, it is important to note that where an employee has not had the opportunity to take annual leave during a leave year because they have been ill, the entitlement to annual leave can be carried over to the next or subsequent years. The entitlement to carry over annual leave is automatic so there is no need for the employee to apply to carry over the leave. It can be tempting to not address the issue of long term absence, especially when entitlement to Statutory Sick Pay (SSP) expires as the perception is that the employee off on long term sick leave is not costing the employer anything. However, as annual leave continues to accrue, allowing the long term absence to continue is only adding to the potential liability for holiday pay that is accruing during the employee’s sickness absence.
Can an employee take annual leave while absent on sick leave?
Yes. Often this will be an attractive option for employees. If employees are off on long term sick leave and getting paid SSP or their entitlement to SSP has expired, employees may wish to take annual leave in order to receive full pay for a period of time. This arrangement can also be attractive to an employer as the annual leave entitlement is used up during the period of sickness absence and does not roll over for the employee to take upon their return from sick leave. It is important to note however that the decision on whether to take annual leave during sickness is one for the employee and the employer cannot require the employee to take annual leave while they are off ill.
Can an employee re-schedule annual leave if they become sick while on annual leave?
Yes. Annual leave is meant to provide employees with relaxation and enjoyment away from the workplace. If annual leave cannot be enjoyed because the employee takes ill while on holiday, they can re-schedule the annual leave for another time. It may be worth considering asking employees to provide a medical certificate for illnesses during sick leave, rather than simply relying upon a self-certificate, which would be normal practice for illnesses up to one week.
There is something else to flag up in relation to sickness absence that does not relate to annual leave but is of relevance this month. Up until the end of the tax year 2013/14, employers were able to avail of a scheme whereby they could recover some or all of the SSP paid to employees on sick leave. Unfortunately, from 6th April 2014, this scheme will no longer be available to employers, although employers will still have some time to reclaim SSP paid for sickness absences that occurred before 5th April 2014. In better news for employers, the government’s initiative to waive the first £2,000 of employer’s national insurance contributions in a year will come into effect from 6th April 2014, which for most small employers should outweigh any loss incurred as a result of the abolition of the SSP recovery scheme.
Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.
