Reclaiming Holidays During Sick Leave

Reclaiming holidays that occurred during sick leave has always been a thorny issue for employers. A recent court case ruling seems to have resolved this issue in favour of the employee.

Employee Holidays Coinciding With Sick Leave

In the past, if an employee’s sick leave coincided with annual leave the attitude of most employers was ‘too bad’. But a recent ruling by the European Court of Justice (ECJ) found in favour of an employee who took legal action against his council employer. The outcome of this case has caused much controversy, especially among employers. The ECJ ruling means that employees can now reclaim holiday entitlement that would have been lost while on sick leave.

European Court of Justice Employee Holiday Ruling

Madrid council worker Francisco Pereda took legal action against his employers when they refused to change his annual leave entitlement. Mr Pereda suffered an injury just before he was due to take annual holiday leave. His employers refused Mr Pereda’s request to change his leave dates but the European Court of Justice decided otherwise. The ECJ found that Mr Pereda should have been given the option to postpone his leave entitlement. The ECJ also found that Mr Pereda should have been given the ability to add the leave onto the following year’s entitlement.

The Importance of Paid Annual Leave

The European Union’s Working Time Directive emphasises the importance of paid annual leave for an employee. An employee should have a minimum of four weeks annual leave. This holiday leave is vital to ensure that employees can enjoy a number of days intended solely for rest and relaxation. When an employee is sick and using sick leave entitlement they are taking the time to recover from illness. Unfortunately in the past, most employers have taken the view that sick leave coinciding with holiday leave is just tough luck for the employee.

What the ECJ Ruling Means for Employees

The 2009 European Court of Justice ruling means that:

• Employees who are sick should be permitted to change their holiday entitlement dates
• Changes to holiday entitlement should be permitted if the employee falls sick before or during the holiday
• Employees have the right to accrue holiday entitlement while on long term sick leave
• Employees can be given the option of having holiday entitled added to the following years leave entitlement

Controversy Over Reclaiming Holiday Entitlement

Many employers are unhappy with the new ruling. Employers who are disgruntled are under the impression that this new rule could lead to widespread abuse of holiday and sickness entitlement. The Federation of Small Businesses (FSB) has claimed that this ruling could be highly detrimental to businesses. Unison, the UK’s biggest public union organisation has welcomed this move and claims that the ruling is very good news for employees.

The Private Sector and Reclaiming Holidays

The new ECJ ruling on reclaiming holidays lost due to sick leave is directly effective on the public sector. But private sector employees may not be so lucky. Unless the Working Time Directive is amended, private sector employees might not be able to benefit from this new ruling. Private sector employers who decide to go against the ruling could be on shaky ground if a case is brought to an employment tribunal. An employment tribunal could find that the ruling can be interpreted to include private sector employees as well as the public sector.

Removing the Likelihood of Holiday Entitlement Abuse

There are ways that employers can fight the abuse of employees who may abuse the new ruling. This can include requesting medical evidence such as doctor’s notes for short term sick leave. This should prove helpful in cases where sick leave does coincide with annual holiday entitlement. Employers who only pay statutory sick pay (SSP) will probably be less likely to see abuse occurring. Employers who are paying contractual sick leave may feel that requesting medical evidence is the best way to proceed.

Whilst abuse of the new ruling may be a problem for some employers the new ruling is good news for employees. In the past, most employees who were unlucky enough to lose holidays during sick leave had little say on the matter. The European Court ruling now gives employees extra rights that will protect them against lost holiday entitlement.