Generally, employers can give notice to employees specifying dates on which their statutory holiday must be taken, in accordance with regulation 18(2) of the Working Time Regulations (Northern Ireland) 2016. This is provided that the employee is given twice the amount of notice of the length leave being requested.

On an initial reading, this suggests that employers could ask employees who are off on long-term sick leave to use holiday entitlement during their period of sick leave. This would often be appealing to employers when employees are receiving contractual sick pay and they do not want to have to make holiday payments to the employees after contractual sick pay entitlement has been exhausted.

Despite this, case law has established that employers should not force employees who are off on sick leave to use statutory holiday entitlement. This means that employers are not advised to request employees on long-term sick leave to take holiday. In contrast, if an employee requests annual leave whilst on long term sickness absence, their employer can accept the request.

Employers should be mindful that requiring employees on sick leave to use holiday could lead to the employees alleging that a breach of the implied term of trust and confidence has occurred and claims for constructive dismissal (or potentially disability discrimination) being lodged.