Can Workers Reclaim Holidays They Lost To Sickness?

Peninsula Team

December 16 2009

In Pereda v Madrid Movilidad SA the European Court of Justice (ECJ) held that the Working Time Directive does not prevent a worker from taking holiday during sick leave.  However, where that worker does not wish to do so, holiday must be granted in a different period, if necessary outside the annual leave period or holiday year in question. Mr Pereda had suffered an accident at work a couple of weeks before his allocated period of 4 weeks holiday (this was pre-scheduled per the terms of a collective agreement).  The injury put him out of action for 6 weeks but his employer refused his request for an alternative period of holiday.  Mr Pereda challenged this decision in the Spanish court, which referred the case to the ECJ. The ECJ stated that, although national legislation may lay down conditions for the exercise of the right to 4 weeks’ holiday, or for the loss of that right at the end of a holiday year or carry-over period, the worker must have had an opportunity to exercise that right.  In this case, as the worker had been sick for the entire period of his allotted holiday, he’d had no such opportunity. Following the Pereda decision it appears that employers cannot require workers to take holiday while on sick leave in order to avoid any carry over issues. Must we now always allow workers to reschedule holidays due to sickness? Not necessarily. There are 4 main considerations:
  1. It is questionable whether the ECJ’s recent judgments regarding sickness and holiday apply to the 5.6 weeks’ leave in the Working Time Regulations, as opposed to the 4 weeks’ leave guaranteed by the Directive. Arguably, if the overlap of sickness and holiday is 8 days or less (for a 5 day a week worker), the ECJ’s pronouncements are irrelevant, particularly where the employee has already taken 4 weeks’ holiday.  We need to wait for appropriate UK precedents.
  2. The ECJ did not specify what evidence of sickness will be expected of a worker who wishes to reclaim lost holiday, but presumably the employer’s normal notification and evidence of sickness rules should still apply.  Employers may wish to request employees to present a doctor’s certificate - although this may not be wise in the current swine flu situation.  In Pereda, there was no question as to the genuineness of the sickness.  This may be contrasted with the situation of a worker taking a week’s holiday and then claiming he was sick for a day of it after he returns.
  3. Public sector workers may be able to rely directly on the ECJ’s interpretation of the Working Time Directive.  However, private sector workers and their employers are constrained by the UK Working Time Regulations (WTR) which still prohibit carry over of the original 4 week holiday entitlement.  The current UK legislation therefore appears to be inconsistent with Pereda and the Government should consider amendment.
  4. If the worker only has an entitlement to SSP, then remember the ‘waiting days’ rules may mean that allowing the worker to reschedule holiday means that the sickness absence is unpaid – don’t forget to adjust payroll for any overpayment in respect of holiday pay and attendance records to redefine the reason for absence.  Press reports have made much of the potential for abuse where there is an entitlement to contractual sick pay.  In reality, however, these developments don’t really add much to the existing scope for such employees to ‘pull a sickie’.
Summary Employers are advised not to rush into changing policies and procedures in respect of the above, but to wait and see what action, if any, the Government takes.  In the meantime, employers should contact our 24 Hour Advice Service on 0844 892 2772 to discuss situations involving carry-over and the overlap of holidays and sickness on a case-by-case basis in the light of developing case law.

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