30 August 2013: What happens when employees fall sick whilst on holiday abroad; can they claim back holiday leave and take it as sick pay instead?

Since 2009 it has been established that the right to paid holiday continues to accrue under the Working Time Regulations even if the employee is off sick (Stringer & ors v HMRC ECJ 2009).

In Pereda v Madrid Movilidad SA in 2009 the ECJ went beyond that and ruled that a worker who falls sick while on holiday is indeed entitled to extra holiday to compensate after he has recovered. In that case Mr Pereda had an accident at work and was off sick during the period he had booked holiday for. His employer wrongly refused his request for a substitute holiday later in the year.

In theory at least, an employee could catch a stomach bug on holiday at some far-flung and exotic location, then come home, take the period as sick leave and take the holiday leave later in the year. Most employers would be sceptical about such a claim unless the employee comes home in an air ambulance, and would demand clear medical evidence of such an illness.

However it’s only really likely to be an issue with employees who receive enhanced sick pay.