Holidays and sickness absence

The European Court of Justice (ECJ) has issued several key decisions about the effect of sickness on statutory holiday rights. These ECJ rulings only apply to the four weeks’ holiday under the Working Time Directive (WTD), not to the extra 1.6 weeks of holiday under UK law. As a result of Brexit, since 1 January 2021, the Court of Appeal and the Supreme Court can decide not to follow these rulings, although in the meantime, they remain binding on ETs and the EAT (see Chapter 1).

Under these ECJ rulings, a worker continues to build up statutory annual leave under the WTD while off sick. They can choose between taking paid holiday while off sick and saving it up to take when they return to work (HM Revenue and Customs v Stringer [2009] IRLR 677).

A worker cannot be forced to take their holiday while off sick (Pereda v Madrid Movilidad SA [2009] IRLR 959). However, taking paid holiday while off sick may be sensible if a worker has exhausted their contractual sick pay entitlement. Workers who want to take holiday when off sick should give notice of their planned holiday, following their employer’s normal holiday procedure.