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Introduction to this document

Reply to request to convert holiday to sickness absence

Use our response letter where an employee requests to convert holiday to sickness absence after falling ill on annual leave. Our letter approves the request if they’ve followed your sickness absence reporting procedure and provided evidence of incapacity. There are also options to decline it if there’s been a reporting failure or a failure to supply medical evidence.

Working Time Regulations

Although the Working Time Regulations 1998 are silent on the relationship between paid holiday entitlement and sickness absence, over the years both UK and EU case law has had plenty to say about the topic. As the case law currently stands, a worker who falls ill during their annual leave is entitled to take that annual leave at a later date, irrespective of whether their sickness commenced before or during that leave. In practice, it means that if an employee falls ill when they’re absent on holiday, they can request that you treat those days as sick days and not as annual leave days. Our Holidays Policy therefore provides that a period of annual leave entitlement lost due to incapacity will be reimbursed.

Reporting and evidence

However, for these days to be eligible to be converted from holidays to sick days, your employee will still need to comply with your sickness absence reporting procedure and your medical evidence requirements relating to self-certification and fit notes, so our holidays policy also makes this clear. In addition, they’ll only receive statutory sick pay (SSP) for these days, if that’s all you pay during sickness absence, and this is normally nothing for the first three days. This financial implication will deter many employees from putting in a request to convert holiday to sickness absence as they won’t want to receive less than full pay.

Request response

Where an employee does ask for their annual leave to be re-credited because they fell ill when on holiday, use our Reply to Request to Convert Holiday to Sickness Absence to reply to them. It reiterates the provisions in our holidays policy and then has three alternative replies:

  1. The employee’s request is granted because they complied with your sickness absence reporting and evidence requirements.
  2. The employee’s request isn’t granted because they failed to follow your sickness absence reporting procedure at the time of their incapacity.
  3. The employee’s request isn’t granted because they have failed to provide the relevant evidence of incapacity - you can still require them to produce a medical certificate for absences that are longer than seven calendar days, for example from a foreign doctor, even if they were overseas when they fell ill.

In the case of 1. above, we’ve confirmed that the affected days will be re-credited to their annual leave entitlement balance, clarified their total annual leave now remaining and reminded them that they need to take these days by the end of the holiday year as there’s no general right to carry leave forward into the next holiday year unless there are exceptional circumstances. Bear in mind that it will be an exceptional circumstance if the employee is unable to take their annual leave in the current holiday year because they’re still off sick. In that case, they can carry forward up to four weeks’ annual leave into the next holiday year, i.e. the amount that’s EU derived.