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Practice dilemma: Sick on holiday

Your healthcare assistant falls ill on holiday and wants to substitute some of her leave for sick days. Can you refuse to do this, or are you required to grant her request? Our legal expert advises.

Your healthcare assistant falls ill on holiday and wants to substitute some of her leave for sick days. Can you refuse to do this, or are you required to grant her request? Our legal expert advises.

Unfortunately, whilst you might prefer to take the view that sickness during annual leave as one of life's unfortunate consequences which the employee has to bear, in these circumstances you may struggle to turn down her request without risking recourse.

It is important to remember the distinctions between why we have sick leave and holiday - holiday is for a period of rest and relaxation for leisure, whereas sick leave is to allow an individual to recover from an illness or injury. With this in mind, employees are allowed to take annual leave during sick leave BUT they must have the option to reallocate their holiday if annual leave and sick leave coincide, even if this means carrying it forward to another holiday year.

However, this rule only applies to statutory holiday (which is 5.6 weeks) and so if your HCA has already taken her statutory entitlement to holiday then this could be grounds to refuse.

A second potential ground for refusal would be if she had failed to follow normal sickness reporting procedures to qualify for sick pay. However, if she has called in sick and produced evidence from her GP to verify her injury, then this is unlikely to be a successful argument for the practice.

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards

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