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Reclaiming Holidays During Sick Leave

By: Garry Crystal - Updated: 19 Sep 2018 | comments*Discuss
 
Holiday Entitlement Sick Leave

Reclaiming holidays that occurred during sick leave has always been a thorny issue for employers. A recent court case ruling seems to have resolved this issue in favour of the employee.

Employee Holidays Coinciding With Sick Leave

In the past, if an employee’s sick leave coincided with annual leave the attitude of most employers was ‘too bad’. But a recent ruling by the European Court of Justice (ECJ) found in favour of an employee who took legal action against his council employer. The outcome of this case has caused much controversy, especially among employers. The ECJ ruling means that employees can now reclaim holiday entitlement that would have been lost while on sick leave.

European Court of Justice Employee Holiday Ruling

Madrid council worker Francisco Pereda took legal action against his employers when they refused to change his annual leave entitlement. Mr Pereda suffered an injury just before he was due to take annual holiday leave. His employers refused Mr Pereda’s request to change his leave dates but the European Court of Justice decided otherwise. The ECJ found that Mr Pereda should have been given the option to postpone his leave entitlement. The ECJ also found that Mr Pereda should have been given the ability to add the leave onto the following year’s entitlement.

The Importance of Paid Annual Leave

The European Union’s Working Time Directive emphasises the importance of paid annual leave for an employee. An employee should have a minimum of four weeks annual leave. This holiday leave is vital to ensure that employees can enjoy a number of days intended solely for rest and relaxation. When an employee is sick and using sick leave entitlement they are taking the time to recover from illness. Unfortunately in the past, most employers have taken the view that sick leave coinciding with holiday leave is just tough luck for the employee.

What the ECJ Ruling Means for Employees

The 2009 European Court of Justice ruling means that:

  • Employees who are sick should be permitted to change their holiday entitlement dates
  • Changes to holiday entitlement should be permitted if the employee falls sick before or during the holiday
  • Employees have the right to accrue holiday entitlement while on long term sick leave
  • Employees can be given the option of having holiday entitled added to the following years leave entitlement

Controversy Over Reclaiming Holiday Entitlement

Many employers are unhappy with the new ruling. Employers who are disgruntled are under the impression that this new rule could lead to widespread abuse of holiday and sickness entitlement. The Federation of Small Businesses (FSB) has claimed that this ruling could be highly detrimental to businesses. Unison, the UK’s biggest public union organisation has welcomed this move and claims that the ruling is very good news for employees.

The Private Sector and Reclaiming Holidays

The new ECJ ruling on reclaiming holidays lost due to sick leave is directly effective on the public sector. But private sector employees may not be so lucky. Unless the Working Time Directive is amended, private sector employees might not be able to benefit from this new ruling. Private sector employers who decide to go against the ruling could be on shaky ground if a case is brought to an employment tribunal. An employment tribunal could find that the ruling can be interpreted to include private sector employees as well as the public sector.

Removing the Likelihood of Holiday Entitlement Abuse

There are ways that employers can fight the abuse of employees who may abuse the new ruling. This can include requesting medical evidence such as doctor’s notes for short term sick leave. This should prove helpful in cases where sick leave does coincide with annual holiday entitlement. Employers who only pay statutory sick pay (SSP) will probably be less likely to see abuse occurring. Employers who are paying contractual sick leave may feel that requesting medical evidence is the best way to proceed.

Whilst abuse of the new ruling may be a problem for some employers the new ruling is good news for employees. In the past, most employees who were unlucky enough to lose holidays during sick leave had little say on the matter. The European Court ruling now gives employees extra rights that will protect them against lost holiday entitlement.

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I had booked my holiday a couple of months before hand. I broke my hand and had sick notes from the hospital before. during and after my holiday. I went on holiday to recuperate. Should I have my holiday refunded as I was on sick leave
Chrissy - 19-Sep-18 @ 8:51 PM
Lala- Your Question:
I have been off sick from work since May 2017 and I have not returned back to work yet. I have not been dismissed yet either. My holiday pay I have accrued in 2017 have been paid to me. As I haven’t worked in the college financial year of 2017/18, I am not entitled to any holiday pay, is this right? As I thought you accrue holiday on sick no matter how long you have been off sick.

Our Response:
You would have to read the terms and conditions of your employment contract to see what your holiday/sickness pay is. However, as a rule statutory holiday entitlement is accrued while an employee is off work sick no matter how long they are off sick. Please see the link, here , which should help answer your question, if your contract doesn't.
AboutEmployeeBenefits - 7-Sep-18 @ 11:58 AM
I have been off sick from work since May 2017 and I have not returned back to work yet. I have not been dismissed yet either. My holiday pay I have accrued in 2017 have been paid to me. As I haven’t worked in the college financial year of 2017/18, I am not entitled to any holiday pay, is this right? As I thought you accrue holiday on sick no matter how long you have been off sick.
Lala - 5-Sep-18 @ 5:25 PM
Recent ?!?!?!?!? The case of Pareda was reported as far back as 2009.....Lazy Lazy Lazy use of the English Language there!!!!
JAneW - 29-Aug-18 @ 9:34 AM
If Iill during my hoils day leave I told work that change hoils day to sick leave they saying need sick note to proff I got shin gelled I been dr and he said rarther paying £40 to self certificate myself for 7 days but work saying they need dr note is this true many thanks
Kez - 7-Aug-18 @ 12:27 PM
The Gov website states you cannot be made to take annual leave if you are on sick leave I was off for four months on long term sick and went on a ore booked holiday for 7 days as was advised by dr it would be good for me.Can Ivrequest my annual leave back as I was unwell and unfit for work.My medical mri scans and letters have all been presented at sickness absence meeting.
Debs - 2-Aug-18 @ 9:31 PM
I have been off sick for 7weeks with a swollen knees. I work in education on a 38 week contract. I was sick before the half term holiday and Iwon't return to work before my 6 week holiday.Can I claim my holidays back?
mfb - 6-Jul-18 @ 10:36 AM
Had to phone in sick on a Friday the Saturday and Sunday were my Rota days off then I was on annual leave from the Monday... employers have cancelled my annual leave, was just a general sickness bug but where do I stand with this? Apparently they treat it as an on going illness ...
Debbie - 20-May-18 @ 7:08 PM
Joe - Your Question:
Hi am off 28 weeks of due to back pain I still hav holidays to take am bac ro wrk on the 30th of this month can I take them pior goin bac I hav been told yes but not yet by employer I wrk for nh

Our Response:
You would have to discuss this with your employer directly. In theory you can - but the final decision will rest with your employer.
AboutEmployeeBenefits - 27-Mar-18 @ 9:27 AM
Hi am off 28 weeksof due to back pain i still hav holidays to take am bac ro wrk on the 30th of this month can i take them pior goin bac i hav been told yes but not yet by employer i wrk for nh
Joe - 26-Mar-18 @ 1:57 PM
I was on holiday over Christmas and due to return to work on 2 Jan 18. Unfortunately I went down with the Flu and my doctor signed me offtill the 8th. I was still not well so he extended to the 16th. I have received a pay slip for the Xmas period and have been paid separately and they have taken back holiday pay. Can they do this as I fell sick on the 2nd and technically not over Xmas. Can I claim this money Back. Thank you
Twiss - 12-Jan-18 @ 3:17 PM
Tommy- Your Question:
Hi I was I sick leave with stress when my mum died n in that time 3 bank holidays occurred which would normally be covered with a a/ l day I tried to claim them back n was told I can’t claim my bank holiday leave back if on sick is this correct I don’t think so!

Our Response:
You can see more via the gov.uk link here, which should help answer your question.
AboutEmployeeBenefits - 11-Dec-17 @ 3:52 PM
Hi I was i sick leave with stress when my mum died n in that time 3 bank holidays occurred which would normally be covered with a a/ l day I tried to claim them back n was told I can’t claim my bank holiday leave back if on sick is this correct I don’t think so!
Tommy - 11-Dec-17 @ 7:45 AM
Shaz - Your Question:
Been employed with company for 16 years in Jan 2018 been on long term sick 3 years Sept 2017 now work are telling me I have lost years holidays as time has run out I have written letters before this asking for holidays to be paid to me and have been ignored at one stage I heard nothing for 8 months until I contacted them by phone after sending 2 letters I am off sick with meneries cervical stetonis and bulging discs and depression and don't know if I will be back to work but they don't seem to care why won't they pay me off due to my illnesses

Our Response:
You can see more via the ACAS link here, which should help answer your question. You may wish to also give ACAS a call to discuss this matter further.
AboutEmployeeBenefits - 4-Dec-17 @ 1:54 PM
Been employed with company for 16 years in Jan 2018 been on long term sick 3 years Sept 2017 now work are telling me I have lost years holidays as time has run out I have written letters before this asking for holidays to be paid to me and have been ignored at one stage I heard nothing for 8months until I contacted them by phone after sending 2 letters I am off sick with meneries cervical stetonis and bulging discs and depression and don't know if I will be back to work but they don't seem to care why won't they pay me off due to my illnesses
Shaz - 1-Dec-17 @ 8:48 PM
Hi, I am employed by an Academy and due to a work related fall and stress due to that fall I have been off work for nearly 6 months. I am a teaching assistant and as such I do not get paid for school holidays, instead my salary is spread over the 12 month period. Am I entitled to the holidays that I lost. I had to cancel my planned booked holiday this year also. Many thanks
Lindyloo - 23-Oct-17 @ 9:25 AM
I have been off work since March after having double ankle fusion still not Bacl to work and it's now Augustcan I get all my hoildays back
Shelly - 25-Aug-17 @ 10:07 PM
My mum is a teaching assistant and has been in and out (mostly in) hospital for 3 weeks. It's the summer holidays so she is on leave,can she claim this time back? Thanks
Clare o - 15-Aug-17 @ 7:53 PM
I have been on the sick for 5 weeks due to stress. During this period I had 2 weeks holidays to be taken which is set by the company. Am I entitled to take these 2 weeks at a different time?
Stacey - 13-Aug-17 @ 3:33 PM
tracey - Your Question:
I had a heart attack in June and had an op to have a stent fitted I'm on sick leave from work until at least Oct due to complications and possibly more surgery I asked my employer if I could save my holidays until I'm well and back at work I was assured this was fine I have just got my wage slip and she has paid me three wks holiday and one wks sick pay I have no leave left how can this be ok to do I can't get fit to fly till xmas and we have planned a trip away in Jan using my annual leave I have also informed my landlord that I'm on the sick and claiming housing and council tax benefit based upon my deputy e mailing him all the info last month that I would only be getting sick pay until further notice I'm very upset and not sure where I stand legally I really don't need the stress any help and advice would be brilliant.

Our Response:
I am sorry to hear this, please see gov.uk link here which may help. You may also wish to re-read the terms of your employment contract to see what it specifies. However, you would need to take this up with your employer directly referring to your verbal agreement and if you are still not satisfied you can raise a grievance here . I hope you manage to sort out this matter and I wish you a speedy recovery. ACAS will also help with advice.
AboutEmployeeBenefits - 28-Jul-17 @ 1:47 PM
I had a heart attack in June and had an op to have a stent fitted I'm on sick leave from work until at least Oct due to complications and possibly more surgery I asked my employer if I could save my holidays until I'm well and back at work I was assured this was fine I have just got my wage slip and she has paid me three wks holiday and one wks sick pay I have no leave left how can this be ok to do I can't get fit to fly till xmas and we have planned a trip away in Jan using my annual leave I have also informed my landlord that I'm on the sick and claiming housing and council tax benefit based upon my deputy e mailing him all the info last month that I would only be getting sick pay until further notice I'm very upset and not sure where I stand legally I really don't need the stress any help and advice would be brilliant.
tracey - 27-Jul-17 @ 10:41 AM
Hi..I work at a college term time part Time. I get paid throughout the year. I'm off now until 4th September..I might be having a gallbladder operation in my annual leave...can I reclaim the time back?
Saraj - 19-Jul-17 @ 8:14 PM
If you are signed off sick during work shutdown and still go away can you claim them holidays back
Del - 5-Jul-17 @ 4:19 PM
I've been off work for almost a year, had operation. Started back Feb 2017 on phased return, work using my annual leave entitlement from last year to do this. But now being told I'm getting two public holidays taken off me, as I was still off sick I don't get new year public hols. I always thought we received the annual leave if we didn't work it but just never got paid it!! I work for the council. Can you tell me if this is correct.
Maisy - 27-Apr-17 @ 7:19 PM
Please help Been with company 18 yrs 2 occasions off sicklast time 2010 chemo/radiotherapy Off sick now with something completely different got sick note for 4 weeks during them four weeks I have a holiday booked Turkey Am I still able to leave the country for a holiday whilst off sick?
Nikki - 3-Apr-17 @ 12:24 PM
Hey there i have been with my employer since 2005,ive recently not had any days off in 2 years.but in periods previously i had injuries that put me off work for 6 months and 4 months respectively.We are contracted to recieve full sick pay for the 1st sick months an employee is off. Myemployer has our hoildays fixed to suit them (so i've no flexible days)in these periods i was off sick over the years. i was unaware i was entitled to accrue them holiday hours, as there was periods i was off sick that fell on my works fixed holiday period.management never ever told me about ant accruement due to being off sick. so i was completely unaware of this until until now. seem like theyve sneakily robbed me of these holiday hours by not telling me.advice on this? can i claim anything back. or is it too late?
aJ - 9-Mar-17 @ 1:37 AM
I am currently sick from work,I recieved a 3 week sicknote from my GP after been admitted to hospital i was still ill so went back to my GP where she did more tests and issued me with a further sicknote for 4 weeks. I am into my second week of my sicknote and have a pre booked holiday during this 4 weeks where do i stand with taking this holiday.
Jacqui - 12-Nov-16 @ 1:46 AM
Can i reclaim my holiday for the week i self certificated or do i need a medical certificate?
Casper - 26-May-16 @ 6:29 PM
If I go on my planned holiday whilst being signed off work, can I claim my holiday entitlement back thanks
Debs - 14-May-16 @ 1:52 PM
Had a quad bike accident while on holiday and was hospitalised over night suffered extensive lower back soft tissue injuries.On my return t UK was signed off work for 2 weeks.I have asked my employer for a self certification for the first week so as I can claim my holidays back. She has said she thinks I should have informed them before returning to the UK.Even though my GP signed me off for 2 weeks.Any idea where I stand?
Shafe - 11-Jun-15 @ 2:25 PM
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