Ever had an employee ill while on holiday and who has asked to
take that period as sick leave instead of holiday?
The recent ruling in the Spanish case of Francisco Vicente
Pereda v Madrid Movilidad
(http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0277:EN:HTML)
means that if an employee falls ill during their
annual leave, they may be entitled to take that annual leave later
on in the holiday year instead or carry it forward to the next
holiday year.
Facts of the case:
Mr Vicente Pereda worked as a driver for Madrid Movilidad SA. He
had booked off a period of annual leave from 16 July 2007 to 14
August 2007. However, on 3 July 2007 he had an accident at work and
was unfit to work until 13 August 2007.
Mr Vicente Pereda asked his employer to allow him to have a new
period of paid annual leave in November and December but his
request was rejected.
The matter was referred to the European Court of Justice (ECJ),
which decided that:
- a worker is entitled to take annual leave during a period which does not coincide with a period of sick leave;
- a worker is entitled to take his rescheduled annual leave in the current or next holiday year; and
- any national rules or collective agreements conflicting with this ruling are no longer valid.
In other words, a worker who is sick is entitled to take sick
leave during what would otherwise have been their statutory annual
leave.
How does this affect UK employers?
It isn't very clear how this applies either to private or
public sector workers.
The decision probably affects public sector employees, but workers
in the private sector will not be able to benefit from this
decision unless:
- their employer allows them to; or
- the Working Time Regulations are amended; or
- an employee persuades a tribunal to interpret the current wording creatively.
This ruling only applies to statutory holiday entitlement under
the Working Time Regulations. It will not apply to contractual
holidays as well.
Employers therefore face the choice of:
- waiting for further clarity in the law and refusing to allow their workers to re-schedule holidays affected by sickness; or
- Allowing employees to re-schedule their holiday or carry it over to a new leave year.
This ruling has been widely criticised as opening the door to abuse
by workers, as well as potentially resulting in extra costs for
those employers who do not allow their staff to postpone their
annual leave if they were sick.
Employers who are worried about abuse by their staff may wish
to:
- require proof of sickness while an employee is on holiday (although this implies a lack of trust); and
- insist on its employees calling in sick to work in the usual way if they are on holiday and fall ill.
The decision comes shortly after the House of Lords held in the case of Stringer that workers were entitled if they wished (and subject to their employer's agreement) to take statutory annual leave during sick leave and accrue holiday during sick leave. The Stringer ruling means that those on sick leave can (subject to their employer's agreement) take annual leave if they wish. If they would prefer not to do so they may be able to insist on postponing their annual leave and taking it at a later date. This may include a subsequent holiday year if it is not possible to arrange holiday before the current year ends.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.