Falling ill on holiday: a reminder of the key legal principles

Employers often ask us whether they should allow workers to re-book their holiday if they fall ill or are injured while they are on leave. As with most questions involving holiday rights, the answer is not straightforward, since it depends on the impact of the EU Working Time Directive on our domestic legislation.

The short answer is that the European Court of Justice has ruled that the Directive requires employers to allow workers to re-schedule their leave in these circumstances, if the illness or injury is sufficiently serious to prevent them from benefiting from their holiday. Employment tribunals are currently obliged to interpret the Working Time Regulations to permit this, at least as far as the core four week entitlement guaranteed by the Directive is concerned. In theory at least, employers can set their own rules for any additional annual leave entitlement.

However, case law offers little guidance on how to assess whether the illness or injury is serious enough to trigger the right to re-schedule, and what evidential requirements employers are entitled to impose. To manage expectations for all concerned, it is best practice to lay down the key ground-rules in a holiday policy, which needs to be consistent with what the contract of employment says about holiday entitlement.

While a level of management discretion will need to be reserved, it is unlikely to unlawful to require medical evidence before agreeing to a request to re-schedule holiday. There will also need to be rules about how soon the re-scheduled holiday must be taken, and whether carry forward into the following leave year is to be permitted in any circumstances. It is also probably worth spelling out that the illness or accident must be serious enough to prevent the employee from being able to work. For example, if an office worker breaks their ankle water-skiing, this would be unlikely to make them unfit for work, even though it will certainly curtail their planned holiday activities.

HR departments are often understandably sceptical when they are contacted by staff who have fallen ill on holiday. It is important, however, to approach all cases with an open mind. It is all too common for employees to fall seriously ill while abroad, and they will rightly expect their employer’s first response to be a concern for their welfare, rather moving immediately to a request for medical evidence.

This post explains the current legal position, where pre-Brexit case law continues take priority over domestic EU-derived legislation. This basic rule is likely to become more nuanced once the Retained EU Law (Revocation and Reform) Act 2023 comes fully into effect, which is designed to abolish the supremacy of EU law for most purposes. It is however uncertain whether this change will have any practical impact on the EU case law referred to above, at least for the foreseeable future. The Government is also consulting on changes to the Working Time Regulations, but their current proposals do not address workers’ rights to re-book leave if they fall ill.