An employee has asked if he can use his holidays to recover from a medical operation. We only pay SSP during sickness absence. Are we okay to agree to this, as technically he’s unfit for work rather than on holiday? Any risks if we agree?
Yes you can agree to this. UK law allows employees to take holiday whilst they are sick if they choose to do so. This is perhaps surprising as it is contrary to the purpose of the Working Time Regulations 1998 (“the Regulations”) – to ensure the worker enjoys a “proper” period of holiday from work, rather than a “theoretical” holiday period when the worker would have been absent in any event because of sickness – but is permitted nonetheless. You should ensure that you and the employee follow your normal procedures for requesting and granting holiday. That way there can be no doubt that the leave they are taking is holiday and the risk of any subsequent argument about the amount of holiday owing is kept to a minimum. The employee can then take advantage of his right to receive full pay for holiday absence rather than the SSP to which he would otherwise be entitled.
Conversely however, you cannot insist that an employee takes their holiday whilst they are sick. This is a principle that has become established through recent European case law which makes it clear that it is contrary to the Working Time Directive for employers to be able to force workers on sick leave to take statutory holiday against their wishes. If they choose not to take their holiday and they have some left at the end of the holiday year as a consequence of long term sick leave, they are entitled to carry it over (up to a maximum of 4 weeks’ holiday) and take it within 18 months of the end of the holiday year in question. They may also be able to carry over more than four weeks if this is permitted by the employment contract, although that would be unusual.
There is provision under regulation 15 of the Regulations for the employer to prevent a worker from taking holiday on the dates they have requested. There may also be separate provision for refusal of annual leave in the contract of employment. However, in the circumstances you describe, you would have little to gain by exercising these rights.
Helen Brooks, Partner at Workplace Lawyers Doyle Clayton.