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Sickness on Holiday – Replacement Leave

30 October 2009

Most employers would consider it unavoidable bad luck if the annual leave of one of their workers was marred by illness. That was until the European Court of Justice (ECJ) recently handed down its decision in the case of Pereda v Madrid Movilidad SA in September 2009.

Here the ECJ was invited to consider the correct approach in a case where the worker falls sick during annual leave and opts to take sick leave instead of annual leave during this time. Under the UK Working Time Regulations 1998 (WTR), full time workers are entitled to a minimum of 28 days, or 5.6 weeks paid annual leave, including pubic holidays. At least four weeks of that leave can only be taken in the leave year to which it relates.

Mr Pereda was a specialist driver who had his annual leave scheduled for 16th July  to 14th August 2007 as per the terms of a collective agreement. Following an accident at work on 3rd July, he was signed off as sick until 13th August 2007. On return, he requested a new period of annual leave from the employer. The employer refused.

The ECJ noted that the purpose of the right to minimal annual leave is to allow a worker a period of rest and relaxation. Sick leave, on the other hand, is to allow the worker to recover from being ill. It followed that a worker on sick leave during a previously scheduled annual leave must have the right, on request, to take that annual leave at another time.

The amount of replacement annual leave that the worker is entitled to equates to the overlap between the period of annual leave originally scheduled and the period for which the worker was sick.

In its ruling, the ECJ did not comment on the evidence of sickness that will be expected of a worker who wishes to reclaim lost annual leave.

So where does this leave us in the UK? 

Minimum periods of leave which are provided for under the WTRs must be taken in the current leave year and it cannot be carried over.  So what happens if a worker’s annual leave is scheduled right at the end of the leave year, he falls ill and opts to take the overlapping time as sick leave? The UK law preventing carry-over would appear to be at odds with the ECJ decision on Pereda. It would seem to be the case that the law will eventually require amending so as to enable a worker to carry over minimal periods of leave. Any additional contractual leave offered by the employer is likely to fall outside of the scope of this decision and is unlikely to be protected.

In the meantime, what are employers advised to do about sickness policies?

Should they rush out and amend their sickness policies and toughen up on reporting rules?

While it is inevitable that changes will be required in the future, some organisations already do offer to reinstate some or all of the employee’s leave if he or she falls ill while on holiday. Until the Government legislates on this issue we would suggest that employers deal with any Pereda type situations in their organisation on a case by case basis and according to their internal policies.

For further information, contact Amanda Okill, specialist in Employment Law on 01227 763939.
 

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