Childcare Counsel - holiday sickness and disciplinary suspensions

A member of staff recently went on holiday and during that period became unwell. Should the absence be treated as holiday or sickness?

A worker who falls sick over a holiday period is, as a matter of law, entitled to treat that period as sick leave and “reclaim” their holiday entitlement. However, this will mean that the worker will be paid sick pay for the period of absence rather than holiday pay, which may not be their preference. Employers will therefore often give employees a choice as to how they wish the absence to be treated.

To ensure consistency and clarity for employees, setting out in writing the nursery’s policy on the treatment of sickness during annual leave is advisable.

Where such policy gives employees the right to choose to cancel any days of holiday that coincide with the period of incapacity and treat them as sick leave, it should be made clear that sick pay will be subject to the nursery’s sickness absence policy, including the notification requirements.

One of our nursery managers is currently suspended and has been invited to attend a disciplinary hearing. She has sent a fit note stating that she is suffering from stress and cannot attend the disciplinary hearing. Should we postpone?

It is a common misconception that if an employee has a fit note to say that they should not attend work because they are suffering from stress, disciplinary proceedings should be halted. However, this is not always required.

The effects of the unresolved disciplinary proceedings on the employee’s mental health may be greater if the proceedings are postponed.

It is usually considered good practice to re-arrange a disciplinary hearing once if the employee says they are unable to attend. If the fit note is for a short period of time, it would therefore be advisable to reschedule for after the expiry of that fit note.

If, however, the fit note is for an extended period, the nursery may wish to obtain medical advice from the employee’s GP or the nursery’s occupational health adviser as to whether the employee is fit to attend.

The employee’s consent will be required to take this step. However, if, as is often the case, the medical advice confirms that the employee is fit to attend the disciplinary hearing, that hearing can proceed regardless of the fact that the employee is still signed off work.