Question

An employee has broken his arm while on holiday. Should his absence be treated as holiday or sick leave?

Answer

It may be difficult to think of your employee as being “sick” when you know that he is spending his time sitting in the sun by the pool sipping cocktails, even if he does have his arm in a sling. By contrast, your employee may feel that it was not a proper holiday as his discomfort stopped him from relaxing properly, not to mention the fact that he had to cancel the diving trip which was the purpose of his holiday in the first place.

It is actually beside the point whether your employee enjoyed himself or not. The relevant issue is whether he would have been fit to perform his work, had his accident occurred during normal work time. If he could do his job with a broken arm, it means that his injury did not affect his fitness for work and therefore there is no reason why his holiday should be treated as anything other than holiday. However if he was not fit to work, for example because he works as a driver, you should then consider treating it as sickness absence and allow him to reschedule his annual leave for another time.

Although UK law remains a little unclear on the subject, European courts have directed that employees who are sick during booked holiday should be permitted to reschedule their annual leave. Naturally this may raise concerns about possible abuse of the system by employees, with them taking their holiday and then claiming after the event that they were unwell while they were away. However there are a number of steps that employers can take to minimise those risks through robust policies. The chance of abuse is also likely to be much less where employees are only entitled to statutory sick pay. The three-day waiting period during which no sick pay is due, together with the low value of statutory sick pay, will make the idea of substituting paid holiday for sickness absence fairly unattractive to employees.

If you would like to know more, please contact Will Walsh, in confidence and without obligation by emailing Will or by calling him on 08450 990045, or speak to your usual contact in the Employment Team.

This answer is provided for information only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this article.

26 September 2011

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