News & Views

Holiday headache - latest developments

BY Hussain Kayani
Employment law
BG Purple

Workers who fall ill during their annual leave are entitled to take that annual leave at a later date following a European Court ruling.

It is the latest development from the European Court of Justice regarding holiday entitlement in the event an employee should become unwell during their holidays.
The ECJ has confirmed that annual leave and sick leave have different purposes, annual leave for rest relaxation and leisure, sick leave to allow recovery from illness temporarily preventing the employee from working.

However the right is confined to entitlement to four weeks holiday, provided to all employees under the European Working Time Directive, not the UK Working Time Regulations, which provide for a minimum of five weeks and three days holiday per year.  If necessary, the leave may be carried over to subsequent annual leave periods.

The right has been labelled a ‘cheats charter’ by certain sections of the media, however, while workers may be entitled to carry forward the entire holiday period during which they fall ill, employers would expect evidence of sickness in accordance with their usual absence policy before sick pay is paid for that absence if their contract provides for paid sick leave.  Otherwise, employees would require to meet the usual requirements to qualify for statutory sick pay, where there is a waiting period before any statutory sick pay is due.  Employers are also entitled to take disciplinary action against employees abusing the company’s sick pay policy if they suspect anyone is taking advantage and seeking extra leave when not genuinely ill.

Please contact your legal manager if you would like to discuss this further, or any other matter.

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