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Holiday Entitlement & Sickness

Holiday Entitlement & Sickness





In our information update 2011/21 (14th November 2011) we explained that this aspect of employment law is rapidly taking over from TUPE as the most changeable area confronting employers.  And, yes… our friends in the Court of Justice of the European Union (CJEU) have been at it again in ANGED vs FASGA.

In a nutshell the court concluded that:


It doesn’t take much time to realise that the impact of this on employers will be significant.  You may remember the CJEU had already held that a worker who was on sick leave prior to, and during, a period of previously scheduled annual leave had the right (provided they make a request), to take the annual leave when he/she had recovered even if that meant taking the holiday outside the leave year in which the leave had been accrued (Pereda v Madrid Movilidad SA).  This of course being contrary to current UK law.

In this latest case, also originating in the Spanish Tribunals, the CJEU held that the Working Time Directive requires a worker who is sick during paid annual leave to “interrupt” the annual leave (reclassify it as sick leave) and take the annual leave at a later date - irrespective of whether the sickness commenced before or during the leave period.

The basis for this….

The Court noted that the right to paid annual leave is an important principle of EU social law from which there can be no escape and as expressly laid down in the Charter of Fundamental Rights of the European Union. It also held that the purpose of paid annual leave is to enable workers to enjoy a period of rest and relaxation as opposed to sick leave which is to enable a worker to recover from an illness that has caused him/her to be unfit for work.

So, in summary – where an employee falls sick before a period of holiday they have arranged, the holiday can be rescheduled so it does not clash with the sickness period and where an employee falls sick during a holiday they are taking the corresponding period of holiday can be rearranged to be taken at a later point, including during the next leave year.

As a reminder, it is well established that:

  • Workers continue to accrue statutory annual leave entitlement during periods of sickness absence.
  • Workers who are absent on sick leave, can choose to take annual leave at the same time as being absent due to sickness (to receive holiday pay instead of sick pay), but must make a request to their employer to do this.  They are not entitled to receive Holiday Pay on top of Sick Pay.

Problems for Employers

CJEU decisions that interpret the Working Time Directive (WTD) directly affect public sector organisations and ‘emanations of the state’ e.g. Arms Length Management Organisations (ALMO’s) so this latest case will be directly applicable.

Uncertainty reigns in the private sector though as employers have to follow the law of the land – in this case the Working Time Regulations (WTR) in which the carry over of leave from one leave year to another is strictly prohibited.  If an employee goes sick towards the end of the holiday year then there is no ‘legal’ right answer as to how employers should treat the situation.  They could hold fast to the WTR and leave it to the employee to pursue the Government for incorrectly implementing the WTD – but holding this line has its risks.  Tribunals are already following the Pereda judgment and we wait to see if they also follow the ANGED case.  The probability is, they will!

The opportunity for ‘abuse’ of this are clear for all to see.

  • Every time an employee goes on holiday involving long haul flights, are they going to return asking for a couple of the days to be treated as sickness due to ‘jet lag’ at the start of their holiday?
  • During the holiday a couple of mornings involved sickness and banging headaches and the employee asks for the time to be classed as sickness so that he/she can take holidays at some other time of the year?  Are holiday hangovers to become sick leave?
  • What absent short term injury recovery periods resulting from holiday activities – skiing accidents, slips, trips, falls etc?

We will continue to monitor these cases and provide further comment for employers as appropriate.  If you need advice – just call us.

If your employees seek to reschedule holidays they claim are lost due to sickness then before agreeing you should seek appropriate evidence of sickness.  For periods of sickness less than seven days this is a signed self-certification form, for periods exceeding seven days this is a doctor’s note.

And finally…

Employers should also note that the new ‘rules’ being formed by the case law only apply to the minimum statutory holiday provided (for full time workers this is 28 days per year including Bank Holidays) and do not apply to any contractual holiday awarded in excess of this entitlement.

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