Ordinarily, you would not expect an employee to be going on holiday while on sick leave. In many cases, this would serve to undermine the extent of any reported illness or injury, providing grounds for disciplinary action or even dismissal where this is indicative of malingering. Still, there may be cases when going on holiday can be justified, such as if the employee is suffering from stress or some other condition affecting their mental health. In this context, taking a holiday may help with their recovery and facilitate a speedier return to work.
The following guidance for employers looks at the rules relating to employees going on holiday while on sick leave, and what else an employee can legitimately do during this time.
What does the law say about going on holiday while on sick leave?
If an employee is suffering from illness or injury, they are entitled to take time off work. This could include a physical condition. It can also include work-related stress or any other mental health condition that affects their ability to do their job. However, whether going on holiday while on sick leave is acceptable will depend on the nature of their symptoms and the circumstances involved.
An employee could be justified in taking a holiday while off sick if:
- they’re not physically able to work, but are still physically able to take a holiday
- they have some form of mental health condition that might be helped by a holiday
- they’re off sick long-term and a holiday might help with their recovery.
If an employee is ill or injured just before or during their holiday, they can take it as sick leave instead. This means that an employee can save their annual leave entitlement for when they are able to enjoy it. Where an employee is already on sick leave before going on holiday, they can continue to take sick leave or request annual leave. However, you cannot insist that an employee take any unused annual leave entitlement during sick leave.
If an employee requests annual leave while off sick — often because they are not entitled to full pay during any sick leave — and you approve their holiday request, sick leave can be paused while the employee goes away. The employee should receive holiday pay during this period, but they cannot get sick pay and holiday pay at the same time. After the employee has taken their holiday, sick leave can then continue if they’re still not well enough to return to work.
Even where an employee on long-term sick leave has exhausted their right to statutory and/or contractual sick pay, they can take annual leave and be paid for it. An employee will continue to accrue their statutory annual leave entitlement as normal while they’re off work sick.
If an employee has not been able to use their holiday because they have been on long-term sick leave, they can carry over 4 weeks’ unused holiday into the next leave year, unless their employment contract or any workplace policy allows more to be carried over. This holiday must then be used within 18 months from the date it is carried over.
Is an employee required to keep in touch during sick leave?
There is no automatic legal obligation on an employee to keep in touch during any period of sick leave, although it is reasonable to require employees, when off sick, to notify you of their intention to be out of the country or otherwise uncontactable, and the dates of their absence.
Employees must also provide you with a ‘fit note’ from their GP (sometimes called a sick note), if they’ve been off sick for more than 7 consecutive days. This includes weekends and bank holidays. If an employee is off work for 7 days or less, they do not need to provide you with proof of their illness, although when they return to work you can ask them to self-certify. In most organisations, there will be a pre-defined ‘self-certification’ procedure, such as completing a form or asking an employee to outline details of their sick leave via email.
Employees who are off work sick for more than 4 weeks may be considered long-term sick. A long-term sick employee will be required to provide you with ongoing sick notes from their GP or other medical professional to cover their period of absence. Typically, a sick note will set out the nature of the condition for which the employee has been absent from work, together with any prognosis period and whether or not a further assessment of their fitness for work will need to be made at the end of this period. The sick note will also often indicate what changes may need to be made to support the employee’s return to work. This can include a phased return, amended duties, altered hours or workplace adaptations.
Is the employer required to make contact during sick leave?
An employer is under a statutory duty, so far as is reasonably practicable, to ensure the health, safety and welfare of its employees. In cases of long-term sick leave, keeping in touch can be important to check on the wellbeing of the employee, to see if they need any support, and to discuss any relevant updates or changes at work. This can help to prevent the employee from feeling isolated or ignored. It can also be helpful for the running of your business, for example, booking temporary cover, and to facilitate the logistics of the employee’s return to work when they’re fit to do so, including making any reasonable adjustments to support their return.
However, the frequency and method of contact with an employee absent on sick leave should be reasonable. Where an employee’s absence is attributable to a mental health condition, it’s especially important to consider whether less or more frequent contact is best. Too much contact may, in the circumstances, be intrusive, potentially exacerbating health problems or putting undue pressure on an employee to return to work before they’re ready. The level of contact which is appropriate will depend on the circumstances, for example, it’s likely to be reasonable to contact an employee with a broken limb more often than an employee who is signed off sick with work-related stress.
You may want to agree with the employee how often contact should be, how that contact is to take place, for example, telephone or email, and who the employee is to be in contact with. This might be their line manager or an HR manager. However, the person designated to deal with any contact with the employee while on sick leave must tread carefully, especially where too much contact is likely to aggravate the employee’s condition or cause them distress.
Any contact with an employee while on sick leave should not be used to ask them to undertake any work-related tasks. Further, unless there is clear evidence of them ‘pulling a sickie’, any pending or other disciplinary issues are generally best dealt with on the employee’s return to work.
Can an employee be disciplined for going on holiday while on sick leave?
Taking a holiday can be an extremely effective way for an employee to recuperate. By being supportive of a much-needed break, either in the UK or abroad, or any other activities that are likely to assist in the employee’s recovery, you are much more likely to see a speedier return to work. In this way, you will also reduce the risk of recurring absences moving forward.
However, if an employee goes on holiday while on sick leave, where this provides clear evidence of malingering, you may be justified in taking disciplinary action against them for misconduct, either on their return to work or during any absence where the employee is on long-term sick leave. You are not expected to delay any disciplinary hearing indefinitely simply because an employee is off sick, although they must be given a reasonable opportunity to attend. An employee can be lawfully disciplined or even dismissed during a period of sick leave, provided you act reasonably in all the circumstances and follow a fair procedure.
Still, in cases where you suspect that an employee has not been truthful about the nature or extent of any condition for which they have been signed off sick, caution must always be exercised — even where going on holiday while on sick leave appears to be inconsistent with any injury or illness described in their fit note. Many employees may be suffering from work-related stress or some other mental health issue, but feel uncomfortable about discussing this with either you or even their GP. There may also be a perfectly acceptable explanation, which is not immediately apparent, for them taking a holiday, such as a recent bereavement.
Prior to instigating any disciplinary proceedings, the reasons behind an employee’s decision to go on holiday while on sick leave should first be investigated, in this way avoiding causing additional stress at a time when they may need your support most. If an employee is suffering from stress or any other mental health condition, and that condition amounts to a disability, any decision to discipline or dismiss them because of this would amount to unlawful discrimination. An employee may also feel forced to resign in response to any failure on your part to support their wellbeing, potentially resulting in a claim for constructive dismissal.
What else can an employee do while on sick leave?
Even if an employee is signed off sick, there may be various activities that they can legitimately undertake during their absence from work. For example, an employee may be genuinely unfit to work but perfectly able to go grocery shopping, go for a walk or run, or visit friends and family. If an employee is seen out while on sick leave, even if you feel like they should be at home resting, this may not, of itself, warrant disciplinary action or dismissal.
In many cases, the illness or injury for which an employee has been signed off sick will not incapacitate them to the extent that they need to be bed-bound or stay at home. Being able to go out, and even socialise, is not necessarily incompatible with someone being unfit for work, especially with work-related stress or any other mental health condition. It may also be the case that certain therapeutic pastimes have been recommended by their GP.
Still, it goes without saying that an employee should not be undertaking any alternative employment while signed off sick, nor any other activity which cannot be justified given the nature and extent of any reported illness or injury. Generally, however, you are required to accept a fit note at face value, unless you have clear evidence that casts doubt on whether the employee is genuinely unfit for work.
If you suspect an employee of malingering, you must not jump to conclusions or make unfounded accusations. Even if an employee has been seen out while on sick leave, this does not prove they have fabricated or exaggerated their symptoms. Where an employee is on long-term sick leave, you may want to ask them to undergo a medical assessment by an independent health professional who can review their condition objectively. For short periods of absence, you should wait until the employee returns to work to conduct a back-to-work interview. A decision can then be made as to what disciplinary action, if any, should be taken.
Need assistance
DavidsonMorris are UK employment law specialists. We work with employers to provide advice on all issues relating to workforce management, including absence management, supporting policies, unauthorised absences, and any disciplinary or misconduct matters that may arise as a result. For guidance on a particular issue, contact us.
Taking holiday during sick leave FAQs
Can you go on holiday if you are off work with stress?
An employee is entitled to go on holiday while on sick leave, either with stress or any other illness, provided this is not incompatible with them being unfit for work and they have provided their employer with a sick note.
What are my rights if I'm off work with stress?
An employee can take 7 days sick leave without a doctor’s note, and longer with proof from their GP or other medical practitioner that they’re unfit for work. An employee should not be disciplined or treated unfairly because of this.
Can I go abroad while off sick from work?
An employee can go abroad while on sick leave from work, although it’s reasonable for an employer to require employees to notify them of their intention to be out of the country and their dates of absence.
Can I be sacked for being off sick with stress?
An employee can only be sacked for stress-related absence if they’re no longer capable of doing their job and all reasonable adjustments have been made by their employer to support their return to work.
Last updated: 17 July 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
