Latest Solicitors News - October 2009

Workers can reclaim holidays lost to sickness

Employees who are sick during scheduled annual leave should be allowed to reallocate their holidays, the European Court of Justice (ECJ) has ruled.

The decision, a new interpretation of the working time directive, follows the ECJ’s ruling on the case of Stringer v HMRC earlier this year that holiday continues to accrue during sick leave. Stringer found that a worker could carry leave forward, even into the next year, if he or she is “unable to take leave through no fault of his own”, but left open the question of what would happen if sickness coincided with scheduled leave. The court has now ruled that employees should have the right to ask for statutory leave to be reallocated in these circumstances, even into the next holiday year.

In the case of Pereda v Madrid Movilidad, the employee was injured shortly before the annual leave was due to start and was refused a request to move his holiday. But there is no reason in principle why an employee whose holiday had already started could not claim the right to reallocate leave, lawyers have warned.

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 a subsequent leave year if it is not possible to schedule leave before the current year ends.

But until the European or UK courts say otherwise, employers are advised to require workers to produce convincing evidence of their illness while on holiday and that it would have rendered them unfit for work before allowing workers to ‘reallocate’ holidays.”