What’s the legal position where an employee is sick whilst on holiday leave ?

Recently there has been some debate, with cases reaching the Employment Appeal Tribunal and the European Court of Justice, surrounding the issue of holiday entitlement and sick leave. The starting point is the Working Time Directive (2003/88/EC). It entitles every worker to paid annual leave of 5.6 weeks. In Pereda v Madrid Movilidad SA [2009]

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Recently there has been some debate, with cases reaching the Employment Appeal Tribunal and the European Court of Justice, surrounding the issue of holiday entitlement and sick leave.

The starting point is the Working Time Directive (2003/88/EC). It entitles every worker to paid annual leave of 5.6 weeks.

In Pereda v Madrid Movilidad SA [2009] IRLR 959 the ECJ held that, in certain circumstances, a sick worker’s entitlement should be carried over to the next year. That led to confusion as to whether the corresponding UK legislation (The Working Time Regulations 1998) could be interpreted to enforce the principle.

The case of NHS Leeds v Larner UKEAT/0088/11, Employment Appeal Tribunal, confirmed that a worker is entitled to a payment in respect of 5.6 weeks annual holiday whether or not they request it, or take it. The situation may alter with regards to a worker who is not on sick leave but merely fails to request the leave.

What impact will the ECJ decison have? For instance, will it a) lead to changes in legislation and/or b) pave the way for workers to seek justice in the courts?

The ECJ has drawn a distinction between the purpose of annual leave entitlement and the purpose of sick leave entitlement.

The former is to enable the worker to enjoy a period of rest and relaxation, and the later to enable them to recuperate from an illness.  So, what happens where a worker falls sick during a period of annual leave ? Are they entitled to take that leave at a later date, even when a period of leave has already been booked. ? The ECJ answered yes.

Workers would be entitled to take annual leave at a later date in these circumstances. If it was refused they would have recourse, first to the Employment Tribunal. Employers must also consider whether an unreasonable refusal would provide grounds for further claims such as constructive unfair dismissal and/or discrimination.

There has been consideration as to whether the Working Time Regulations 1998 can be interpreted in line with the recent ruling. It would appear not and that there are plans to amend the Regulations. In the absence of the Working Time Directive being reversed, which would seem unlikely, the principles must be incorporated into UK law.

 What do employers need to do next? Will employees be able to claim/bring challenges immediately?

 Companies need to ensure that their relevant policies on annual leave are updated to incorporate this entitlement. Workers who are on long term sick leave should be allowed to take annual leave at a later date.

Policies should be updated to include a clause stating that if an employee falls ill during pre-scheduled annual leave they may elect to treat those days as sick leave. They should inform their manager of the sickness and likely duration. Standard requirements for self certification and medical certificates as outlined in the sick leave policy would apply.

More advice for employers is here.

Employment law

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