Workers entitled to reclaim holidays lost to sickness.
28th September 2009
The European Court of Justice has given a decision which indicates that any period of illness whilst on holiday does not count towards the minimum entitlement of 4 weeks paid holiday under the Working Time Directive.
The case concerned a driver, Mr Pereda, who suffered an accident at work shortly before the start of his 4 weeks annual leave period. His injury put him out of action for 6 weeks. This meant that his leave almost completely overlapped with his planned 4 weeks holiday. Mr Pereda requested additional holiday, to make up the holiday he lost through his injury. His employer refused his request for further holiday.
The European Court of Justice ruled that the period of sick leave should not have counted towards Mr Pereda’s holiday period. In reading its decision the European Court of Justice emphasised that the purpose of sick leave and the purpose of paid annual leave are different. The purpose of sick leave is to enable and ensure the worker can recover from being ill; whereas the purpose of annual leave is to enable a worker to rest and enjoy a period of leisure away from work.
This ruling indicates that if a worker decides not take his/her annual leave whilst off ill, he/she must be given a replacement period of annual leave. In principle this must apply whether the worker falls ill before, or during the actual annual leave period.
There are numerous practical problems surrounding this court decision. It would be all too easy for a worker to return from holiday saying they’d been ill for the whole holiday, or part of it. Perhaps requiring a sick note from the worker would provide a solution. However, this may not be a solution with sickness absences that have lasted just a couple of days, or have occurred while the employee was abroad. There is also the question of whether any contractual holiday over the minimum required by the European Time Directive should be treated in the same way when the worker has been off ill.
The best course of action is to address this issue in the staff contracts. If you need help on this issue please do not hesitate to contact us.