The holiday season is upon us! We thought it would be helpful to answer some FAQs on holiday:
- An employee has recently returned from a holiday to Spain. The employee’s manager received a call from the employee during their holiday – the employee explained that they had got food poisoning from the hotel buffet and was therefore calling in sick. When the employee got back, they said they were unwell for five working days of the fortnight’s holiday. The employee wants to take this leave another time. Should we allow this?
If the employee has complied fully with the requirements around notification of sickness absence, then the five days leave should be allowed to be rescheduled at another time. This has been established following previous cases on holiday and sickness absence – our previous articles can be found here. Where employers have concerns over possible abuse of sickness absence and holidays, it is important to consider putting in place strategies to prevent this such as monitoring sickness absence and making employees aware that they could be subject to disciplinary action for abuse of the system. We can help you do this – contact us if you would like to discuss this further.
- We have an employee who is on long-term sickness absence. We have obtained a medical report and the employee’s prognosis is not good, so we may need to consider potentially terminating the employment. The employee has asked us what holiday pay would be received on termination of employment.
The law is clear that employees on sickness absence continue to accrue holiday whilst they are off sick. This means that the employee should be able to take their holiday when they return from sick leave, even if this means carrying over unused holiday from one holiday year to the next or paying the employee for that accrued holiday if employment terminates.
What is still currently unclear in law is the limit on the length of time that holiday can be carried over. The European Court of Justice has ruled in KHS AG v Schulte  that the period for holiday carry over is not unlimited (and in this case the limit was 15 months – our article on this case can be found here), but the UK Government has not yet given further guidance on this. The entitlement that can be carried over is also likely to be limited to the statutory 4 weeks of holiday provided for in the European Directive on Working Time and will not include the additional 1.6 weeks provided for in UK law, or any contractual holiday entitlement offered by employers which is over and above the statutory minimum of 5.6 weeks for a full-time employee.
In the scenario in the question, there would seemingly be a few options on what would be paid to the employee depending on the amount of holiday owed and whether this was accrued in previous holiday years or the current holiday year. The amount of holiday pay would also need to be based on the employee’s salary.
- We have an employee who has requested holiday to observe a religious festival. No other employees have made such a request. Unfortunately, the holiday requested will coincide with a very busy period when we usually specify to employees that they cannot take holiday during that time. What should we do?
Employers should be aware of potential discrimination on the grounds of religion or belief if an employee requests holiday to observe a religious holiday or festival. In this scenario the employee has provided a reason for the request and it is related to the employee’s religion. Therefore, if the holiday is refused, this could potentially constitute indirect discrimination. However, it may be possible to justify the refusal by reference to reasons unrelated to the employee’s religion because the period coincides with a time when no employee is permitted to take annual leave. This is definitely the sort of situation where it is best to take advice!
- Can an employee insist on taking holiday at a given time?
The answer is generally no. Holiday should be taken at a time agreed with an employer, and generally sufficient advance notice should be given by an employee. It is advisable for the process for requesting holiday to be set out in the contract of employment or in a staff handbook.
If you would like to talk through a holiday issue you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).