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Falling ill whilst on holiday – the legal implications

 

It seems that not a day goes by without a warning about one scam or another. The rise of a compensation culture has resulted in an increase in ‘ambulance chasing’ companies encouraging individuals to pursue legal claims.  Facing a new challenge, is the travel industry which has seen a surge in new "whiplash" type claims made by holidaymakers, falsely claiming that they fell ill whilst on holiday and seeking compensation.  A poll carried out for ABTA suggests that 19% of all holidaymakers may have been approached by a claims management company on their return home.

The travel industry has mounted a vigorous defence to such claims which has seen a couple from Merseyside being jailed after pretending to be sick on holiday and this month a Derbyshire couple pleaded guilty to fraud after claiming a trip to Turkey was ruined by diarrhoea and vomiting.

You may be asking what do these cases have to do with employment law? The answer is that if an employee is genuinely ill whilst on holiday then they are entitled to convert their holiday to sick leave. The European court has held that where pre-arranged holiday coincides with a period of sickness, the worker must have the option to take their holiday at a later date.

This means that any period of absence due to sickness whilst on holiday must not be deducted from their annual leave entitlement, so any holiday and associated holiday pay will remain owed. This entitlement can also be carried over until the next holiday year if the employee is unable to take it in the present year. This is most common when the holiday year starts in January and people have been ill over the bank holidays or holidays between the two. As far as pay is concerned an individual would have a contractual right to sick pay or Statutory Sick Pay for the period.

If they have been abroad and have made a claim against the holiday resort or operator, they will usually have been legally represented. Usually they will seek to claim compensation for all losses incurred and this will often be the difference between SSP and full wages for the period of sickness. Because of an odd quirk of law they will end up effectively receiving holiday pay for the ‘spoiled’ holiday vacation but there will remain an entitlement for the time off to be taken again.

More seriously, in the recent case of Metroline West Ltd v Ajaj   the judge gave the view that ‘pulling a sickie’ was gross misconduct as it was a fundamental breach of the implied contract term of mutual trust and confidence. This could potentially mean that anyone who is found to have made a false claim (either for compensation or extra holiday) while on holiday might face criminal charges and potential dismissal. However, a mere suspicion of fraud or deceit will not justify dismissal so if you have any doubt you should seek advice.

David Ward

HR Consultant

This article is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employment law, speak to one of our advisors by calling 01455 444222 or click here and complete our online enquiry form and an advisor will contact you shortly