Our monthly look at employment law changes and developments
The European Court of Justice has already held in 2009 that an employee who was unable to take his scheduled annual leave (because he had had an accident) was entitled to re-take his holiday at another time. The rationale for this was that sick leave and annual leave are two very different things. Sick leave is given to the worker so that he or she can recover from an illness that has caused him or her to be unfit for work. On the other hand, annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure.
In another decision last week, the ECJ was asked whether an employee who fell sick during his annual leave was entitled to re-take that holiday time. Perhaps not surprisingly, the ECJ agreed that he was. I say not surprisingly, because the same logic was applied. If sick leave and annual leave are two very different things, then it shouldn’t really matter if the period of sick leave commences before or during the annual leave.
What does matter of course is how employers should deal with this. What is to stop the unscrupulous employee returning from two weeks in Ibiza, claiming he was laid up in bed with flu for most of it, and demanding another ten days holiday? The answer is to ensure that there are robust policies in place which require evidence to show that the employee was genuinely ill. This should be the case regardless of whether an employee is on holiday or not.
Remember also that this ruling applies to statutory holidays taken under the Working Time Regulations only, and not in respect of any additional contractual holidays granted by employers. Employers can therefore include provisions which limit the ability of employees to ‘claim back’ holidays where they have already taken their statutory quota. Managed properly, this ECJ decision may not be the unmitigated disaster it has been portrayed as being.