Holidays & Sickness - a headache for employers?

A recent European Court of Justice (ECJ) ruling, on the Pereda case could cause problems for employers.

The decision arose beacuse a Spanish worker, Mr Pereda, was injured shortly before he was due to go on leave. He asked his employer for a different period of leave, but this request aws refused. Mr Pereda did not accept the decision and pursued a claim which ultimately found its way to the ECJ who ruled that workers who go on sick leave during a period that has been booked as holiday leave should be allowed to reschedule their holidays, even if that means allowing leave to be carried forward into the next holiday year. The thinking seems to have been "to rest and enjoy a period of relaxation and leisure" was different from the purpose of sick leave "to recover from being ill".

Earlier this year the ECJ ruled that paid annual leave under the Working Time Regulations (WTR) continues to accrue during sick leave, and that workers can opt to take that leave even when off sick (subject to the employer's rights to control when leave is taken).

So the ECJ is saying that workers who are on sick leave have a choice: they can take annual leave if they wish, but if they would prefer not to do so they can insist on postponing their annual leave and taking it at a later date, possibly even in the following leave year if it is not possible to schedule leave before the current year ends.

This means that employers who do not allow leave to be carried forward risk a tribunal finding that they have breached the WTR. Currently this risk is greater for public sector employers.

Although employees may be delighted, this may have a significant impact on the productivity and profitability of smaller businesses, who will have to decide how they will require employees to prove that they were taken ill whilst on leave!

For more detailed advice on how this works in practice, please call Simon King on 01827 317071 or Ben Mason on 01827 317079.