The European Court of Justice (ECJ) has ruled that Employees who fall sick during their annual leave have the right to re-take that annual leave a later date, irrespective of when they fell ill.
The ECJ stated that “the purpose of entitlement to paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different, since it enables a worker to recover from an illness that has caused them to be unfit for work.”
It is established law that someone who falls ill before taking his or her holiday is entitled to cancel their leave and take it at a later date, however in the case of Pereda v Madrid Movilidad SA it has been decided that a worker who is sick during his or her annual leave is entitled to take that leave at a later date. At odds with the previous principles this ruling raises some potentially expensive issues and it is important that employers adapt their holiday and sick policies to encompass the new ruling and provide themselves with some level of protection.
It is probably prudent to add something into the sickness absence policy to state that employees who fall sick while on holiday must provide some form of written confirmation from a GP, clinic or hospital if they wish to change the designation of their time off from annual leave to sick leave. I know that some employees seem to believe that sick leave is an addition to their holiday entitlement; unfortunately this case backs them up and provides a further mechanism to help achieve their aim. I have visions of a booth at Malaga Airport offering sick certificates for returning holidaymakers.
In a further challenge to the accepted norm we have another ruling on holidays this time from the Court of Appeal in the eagerly awaited judgement in NHS Leeds v Larner it has been decided that a person on long term sick does not lose their holiday entitlement if they do not request it before the end of an annual leave period, nor does there have to be a request to carry it over to the next year. In effect the holiday entitlement is banked for future use, or as in this case it is paid to the worker as accrued entitlement when they leave.
Adrian Barnes is Head of Employment at DBS Law