HOLIDAYS AND SICKNESS
 The European Court of Justice (ECJ) has held that a worker who becomes unwell during a period of annual leave has the right to take the lost annual leave at a different time.
In this case the employee prior to his sick leave sustained an injury at work. The injury resulted in him being unwell during the whole period of his intended holiday. The ECJ held that the employee was entitled to take that leave at another time.
The amount of time a worker is entitled to take is the period for which he/she was ill during the planned annual leave. The timing of the replacement annual leave is to be taken in accordance with the normal company rules as to annual leave. However, the replacement annual holiday leave may be taken in the following holiday year if a worker is unable to take the leave during that holiday year. This rule potentially causes a problem in UK law as the carrying over of statutory holidays from one year to the next is prohibited. As such we may see a change in the law or some liberal interpretation of existing legislation.
This decision has the potential to cause a number of practical problems for employers. Primarily it will be difficult to establish if a worker is genuinely ill when on annual leave. What is an employer to do if a worker calls to advise during a holiday that he/she is unwell? Employers may be wise to amend their procedures to require a worker to provide more than self certification as evidence of illness whilst on annual leave. This in itself has problems especially where the worker was abroad and allegedly unwell. We await further clarification as to what an employer can do and whether the current UK law can give effect to this decision.
This is the second recent decision in respect of holidays that will no doubt concern employers. The ECJ in another case held that workers could take annual leave when on long term sick and if they were unable to take leave by reason of sickness the annual leave could be carried forward to the next holiday year. When this case went to the House of Lords to consider in light of the ECJs decision it was decided that workers could claim for payment in respect of holidays they had not been able to take during previous holiday years. The effect of the decision is that workers on long term sick may be able to claim for payment equal to the number of week’s annual leave they have not taken during their period of sickness, which may go back over a number of holiday years. |
