One of the most confusing areas of employment law in recent years has concerned the impact of sickness absence on employees’ entitlement to statutory holiday and holiday pay.  These issues have been examined at judicial levels from Employment Tribunals to the European Court of Justice. Some key points that have emerged from these cases are set out below: Employees on sickness absence during a holiday year do not lose their entitlement to accrue annual leave. While on sickness absence, an employee can nominate a period of the sick leave as holiday and should be paid at the full contractual rate. An employee on long term sickness absence who does not wish to nominate a period of sick leave as annual leave is entitled to carry the accrued annual leave forward into the next holiday year. However, leave carried forward in these circumstances should be taken within 18 months of the end of the leave year in which it was accrued. If prearranged holiday coincides with sick leave the employee should be allowed to take the holiday at another time. On termination of employment, an employee is entitled to payment in lieu of accrued holiday that has been carried over, where the carried over leave relates to a holiday year in which they were absent for the entire year due to sickness.

Dismissed while off sick? Learn your legal rights, employer obligations, and what to do next—expert advice from Springhouse Solicitors.

Can employers take disability related sickness into account when dismissing for poor attendance? In the case of General Dynam4ics Information Technology v Carranza , the EAT considered this issue, and the question of whether it would be a reasonable adjustment not to take disability related absences into account. Background Mr Carranza suffered from abdominal adhesions, which was a disability under the Equality Act 2010. Mr Carranza’s disability caused him to be absent from work on numerous occasions. The employer would generally disregard any disability related sickness absence when looking at its trigger points for disciplinary action, although it could take it into account such absence once the disciplinary procedure had been triggered. Mr Carranza’s level of ordinary sickness absence had already triggered a formal disciplinary procedure and in 2011, he received a final written warning. Following the warning, Mr Carranza suffered two short disability related periods of sickness absence, although his employer took no action. Mr Carranza then suffered a shoulder injury, leading to 3 months’ sickness absence, which triggered further disciplinary action. At this point, the employer sought advice from occupational health, which confirmed the shoulder injury would heal but that the abdominal adhesions were a lifelong problem and periodic absences would certainly occur. Mr Carranza was dismissed and brought claims for disability discrimination and unfair dismissal. The employment tribunal found that the employer had failed to make reasonable adjustments, deciding that it would have been reasonable for the employer to disregard the final written warning (which had been imposed after the employer had taken previous disability related sickness absence into account). The Tribunal also held that the dismissal was unfair and that the circumstances of the final written warning should have been closely examined by the employer before dismissal. The employer successfully appealed. The EAT decided that there had not been a failure to make reasonable adjustments. The employer did not have to disregard the final written warning upon which the dismissal was partly based. The fact that the employer had made allowances and adjustments in the past, did not mean they had to entirely disregard warnings given and the reasons for those warnings. The EAT also decided that the Tribunal had been wrong to criticise the employer for failing to examine the final written warning prior to dismissal because there was nothing to suggest that it had been given in bad faith or was manifestly inappropriate. It was fair for an employer to dismiss where continued absence was likely to be a problem and where the employee had been disciplined in the past. Implications This case is helpful to employers insofar as it demonstrates that it is possible to fairly dismiss a disabled employee. Even where an employer has made allowances and adjustments in the past, it does not necessarily mean that all disability related absences should be ignored when reaching a decision to dismiss.  However, an employer should always seek up-to-date and appropriate medical evidence to help justify and support its decision.

Dealing with sickness absence is a perennial problem for employers and employees alike, with unfair dismissal and discrimination rearing its head at every turn. Our checklist will put employers and employees on the right track for a successful outcome. Policies Putting policies and procedures in place will help employers by setting standards of attendance and consistent treatment. They should be the starting point for sick employees in terms of what they can expect from their employer. Training Businesses should train managers on their policies and potential legal issues. Paper trail It is essential for employers and employees alike to keep an accurate record of all meetings and correspondence. For employers, file notes should be kept to make a record of all considerations, including those recommended here. Monitoring Companies need an accurate procure of patterns of absence, reasons, and hot spots. Categorisation Pregnancy and disability related absences should usually be discounted, subject in the case of disability to all reasonable adjustments being made and responses being proportionate and legitimate. Stay in touch Employers should take reasonable steps to stay in touch with employees absent on sick leave. Investigation Up to date medical evidence should be obtained and freely given before any significant steps are taken. The key factors for investigation will be the nature, extent, likely duration of illnesses, and presence of any disabilities. Short term/intermittent absences Explore the possibility of any underlying causes. If appropriate follow a capability or disciplinary procedure, providing warnings and clear yardsticks for improvement. Consultation This is an essential ingredient of any fair dismissal, and should be an expectation in relation to all items on this checklist affecting the employee. This means employers keeping an open mind. Essential considerations: adjustments to workplace and duties to enable a return to work. Make sure suggestions are reasonable. Possible adjustments include: staged return, adjusted hours, relocation of work station, and reallocation of duties. impact of the absence on the business. alternative employment. surrounding circumstances, for instance age, length of service, previous absence record insurance policies in place.