Jetting off to tropical beaches, bustling cities, or remote mountain escapes is one of life’s greatest joys. But while your suitcase may be packed with suncream and sandals, your immune system might not be quite as ready for the adventure. From stomach bugs to mosquito-borne mischief, a surprising number of holidaymakers find themselves spending more time with local doctors than tour guides
As many of us look forward to our hard-earned holidays, the last thing anyone expects is to fall ill during their time off. However, for some, illness may strike during annual leave, leaving individuals wondering whether they can reclaim those lost days or if they have to forfeit them. This is a common concern, and it’s important to understand the legal position in this situation.
In the UK, employees are granted a statutory right to paid holiday leave. The rules surrounding holiday entitlement, sickness during holidays, and how to reclaim those days can seem complex, but understanding your rights can ensure that you don’t lose out on time off when you need it most.
The right to reclaim holiday leave due to sickness is enshrined in both UK law and EU law. Those who are off sick during a period of annual leave are entitled to take the leave at another time, rather than losing it.
The European Court of Justice (ECJ) has made it clear that employees should not be deprived of their holiday entitlement simply because they are unable to take their holiday due to illness. In a landmark ruling in 2014 Pereda v Madrid Movilidad, the ECJ confirmed that workers who fall ill during their holiday should be able to reschedule those days once they are fit to return to work.
The principle applies to both long-term and short-term sickness. So, whether you suffer from a minor illness or a more significant health issue, the principle remains the same –you have the right to reclaim that lost time off.
When the Revocation of EU Law Act came into force, ending the supremacy of EU law in the UK, additional words were added to domestic legislation stating that, where individuals are unable to take some or all of their annual leave as a result of taking a period of sick leave, this leave may be carried over and taken within 18 months of the leave year to which it relates.
The European Court decisions made it clear that a worker who is incapacitated before a period of pre-arranged statutory holiday should have the right to reschedule the holiday for a later date. Moreover, if the worker remains sick until the end of the relevant leave year, then this requires them to be allowed to reschedule their holiday in the next leave year. It was later confirmed by the ECJ in a further case, that workers who become sick during statutory holiday should be entitled to take the sickness-affected holiday at a later date
If you fall sick during your annual leave, you should not be penalised for this. In fact, the law provides for the possibility of reclaiming your holiday days if illness prevents you from enjoying the time off as intended. If you’re too unwell to work, you’re entitled to take sick leave even if you fall ill just before or during a booked holiday. In this situation, you have the right to reclaim the affected annual leave days and take them at another time when you’re well enough to enjoy them.
When opting to take sick leave instead of annual leave it’s important to consider how this could affect your pay. Depending on your employer’s policy, you may only be entitled to Statutory Sick Pay (SSP) during your time off, which is typically lower than your usual holiday pay.
The key principle here is that if you are unwell during a period of holiday leave, you have the right to request that the time be reallocated. This means that the days you were sick should not be counted as part of your annual leave entitlement.
A common problem for employers is abuse of the right to reallocate or reschedule holiday entitlement. Whilst employers are obliged to allow employees to reschedule their statutory holiday entitlement if they were unable to take it due to sickness, employers are within their rights to implement measures aimed at reducing the risk of misuse of this provision. The risk and potential cost of employees misusing sick leave tends to be lower when they’re only entitled to Statutory Sick Pay (SSP), rather than enhanced contractual sick pay. SSP’s limited value, along with the current three-day waiting period before it kicks in, often makes it a far less appealing alternative to paid holiday.
That said, it’s still wise for employers to maintain clear procedures to help discourage any misuse. Usual practices like requiring staff to report illness promptly, submit medical certificates for longer absences, and attend return-to-work meetings can and should still apply, even if the illness happens to fall during a holiday.
Some employers may opt to limit access to contractual sick pay during holidays unless proper medical evidence is provided such as requesting a doctor’s note rather than relying on self-certification. While this can be an effective way to prevent abuse, it’s worth noting that such policies may require updates to employment contracts. It’s also important to strike a balance as being too rigid can risk signalling a lack of trust, which may affect team morale.
It’s crucial that you notify your employer as soon as possible if you are ill during your holiday and follow any relevant employer policy. Most employers will expect you to notify them within a reasonable time frame and provide appropriate medical evidence although this may be difficult when abroad.
While it’s entirely reasonable for employees to fall ill on holiday (unfortunately, germs do not respect out-of-office replies), there are a few practical hurdles to keep in mind. For those struck down abroad, tracking down a doctor, navigating foreign healthcare systems, or even finding a printer for medical paperwork can be more stressful than the illness itself. And back in the UK, getting a fit note for a short-term bug can feel like a mission in its own right.
Employers should keep a close eye on sickness absences as not only is it important for legal compliance, but it also helps spot any suspicious patterns because while we’d all love a few extra days in the sun, any falsification can lead to disciplinary action and a breakdown of trust between the parties.
A gentle reminder too, sick pay is meant for when someone is genuinely unfit for work. Just because you cannot enjoy your holiday doesn’t automatically mean you’re unwell enough to be off sick. For example, a sprained ankle might ruin your ski trip, but it would not necessarily stop you from doing your usual desk job. So while it might be a disappointing getaway, it does not always mean a reschedule is on the cards.
In certain situations, you may be unable to reschedule your holiday within the current leave year due to ongoing illness. The Working Time Regulations allow for unused statutory holiday to be carried over if an employee was unable to take the leave due to sickness. This means that workers are entitled to carry forward four weeks’ annual leave where they are prevented from taking it during the relevant holiday year due to sickness.
Falling ill during your holiday can be frustrating, but understanding your rights ensures that you can make the most of your statutory holiday leave without losing out. By knowing the rules surrounding sickness and annual leave, you can navigate the process of reclaiming your holiday leave effectively and with confidence.
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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.
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