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Where Are We Now with Holidays and Sickness Absence?

Summary:  A look at the latest European Court of Justice ruling on an employee’s right to take annual leave even when they are absent from work due to sickness. 

ECJ decision – sickness during holiday leave

The vexed issue of sickness absence and holiday entitlement rumbles on with the latest judgement of the European Court of Justice (ECJ) providing some clarification, but also raising some questions, in the case of Asociacion Nacional de Grandes Empresas de Distribucion (ANGED) v Federacion de Asociaciones Sindicales (FASGA) and others (“the ANGED v FASGA case”).

Previously, in Pereda v Madrid Movilidad SA (“the Pereda case”), the ECJ held that a worker who becomes unfit for work before a period of statutory annual leave must be able to take that leave at a later date (including, if necessary, carrying the statutory annual leave over to the next leave year).  However, there was no specific ruling on what would happen if a worker became ill during their annual leave.

In the ANGED v FASGA case, the ECJ held that an employee was entitled to reschedule their statutory annual leave even if they fell ill during a period of annual leave.  The ECJ made it clear that the worker could only reschedule the period of planned annual leave that coincides with unfitness for work.  For example, if an employee is on annual leave for 2 weeks, but falls ill during the last 3 days of that leave, they would only be entitled to reschedule 3 days, not 2 weeks, of annual leave.

The ECJ’s judgment in the ANGED v FASGA case was only in relation to the 4 weeks of annual leave which is the entitlement stipulated for employees by the European Working Time Directive.  Under UK law, employees are entitled to a more generous 5.6 weeks of annual leave.  Although not directly an issue in this decision, it appears from previous ECJ decisions that it is likely that employees will only have the right to reschedule the 4 weeks, not the full 5.6 weeks, in such circumstances.

Government proposals

The government has proposed amending the Working Time Regulations 1998 (which were intended to implement the European Working Time Directive) to expressly provide that workers who are unfit for work during their annual leave may reschedule that leave and take it at a later date (including being able to carry the leave over to the next leave year); bringing UK legislation in line with European law.  However, the proposal at the moment is limited to the 4 weeks’ annual leave required by the European Working Time Directive, and not to the 5.6 weeks’ annual leave to which employees are entitled under UK law.

Unless very carefully drafted, this could result in confusion in relation to the status of the additional 1.6 weeks’ annual leave.  The question of whether employees should be entitled to reschedule this additional leave where they have been sick would remain if the proposal went ahead only in relation to the European stipulated 4 weeks’ leave.  This raises more issues, such as how the additional 1.6 weeks should be identified and which 4 weeks of leave are the European 4 weeks of leave.

Practical consideration for employers

Employers who pay company sick pay will want to consider how to prevent abuse of the system by employees claiming additional annual leave (and pay) by stating they were sick during their holiday, on their return.  Enforcement of notification of sickness procedures (eg reporting to their manager and requiring medical evidence) may go some way towards avoiding such abuse.

For more information about the crossover between annual leave and sickness absence and employees’ rights to carry over holiday to another leave year, please contact a member of the Floyd Graham & Co team on 01604 871143 or fgmedia@floydgraham.co.uk.

This update is for general guidance only and does not constitute definitive advice.

Updated: by FG Solicitors
Call us on:  0808 172 93 22

WHERE ARE WE NOW WITH HOLIDAYS AND SICKNESS ABSENCE?

Summary:  A look at the latest European Court of Justice ruling on an employee’s right to take annual leave even when they are absent from work due to sickness. 

ECJ decision – sickness during holiday leave

The vexed issue of sickness absence and holiday entitlement rumbles on with the latest judgement of the European Court of Justice (ECJ) providing some clarification, but also raising some questions, in the case of Asociacion Nacional de Grandes Empresas de Distribucion (ANGED) v Federacion de Asociaciones Sindicales (FASGA) and others (“the ANGED v FASGA case”).

Previously, in Pereda v Madrid Movilidad SA (“the Pereda case”), the ECJ held that a worker who becomes unfit for work before a period of statutory annual leave must be able to take that leave at a later date (including, if necessary, carrying the statutory annual leave over to the next leave year).  However, there was no specific ruling on what would happen if a worker became ill during their annual leave.

In the ANGED v FASGA case, the ECJ held that an employee was entitled to reschedule their statutory annual leave even if they fell ill during a period of annual leave.  The ECJ made it clear that the worker could only reschedule the period of planned annual leave that coincides with unfitness for work.  For example, if an employee is on annual leave for 2 weeks, but falls ill during the last 3 days of that leave, they would only be entitled to reschedule 3 days, not 2 weeks, of annual leave.

The ECJ’s judgment in the ANGED v FASGA case was only in relation to the 4 weeks of annual leave which is the entitlement stipulated for employees by the European Working Time Directive.  Under UK law, employees are entitled to a more generous 5.6 weeks of annual leave.  Although not directly an issue in this decision, it appears from previous ECJ decisions that it is likely that employees will only have the right to reschedule the 4 weeks, not the full 5.6 weeks, in such circumstances.

Government proposals

The government has proposed amending the Working Time Regulations 1998 (which were intended to implement the European Working Time Directive) to expressly provide that workers who are unfit for work during their annual leave may reschedule that leave and take it at a later date (including being able to carry the leave over to the next leave year); bringing UK legislation in line with European law.  However, the proposal at the moment is limited to the 4 weeks’ annual leave required by the European Working Time Directive, and not to the 5.6 weeks’ annual leave to which employees are entitled under UK law.

Unless very carefully drafted, this could result in confusion in relation to the status of the additional 1.6 weeks’ annual leave.  The question of whether employees should be entitled to reschedule this additional leave where they have been sick would remain if the proposal went ahead only in relation to the European stipulated 4 weeks’ leave.  This raises more issues, such as how the additional 1.6 weeks should be identified and which 4 weeks of leave are the European 4 weeks of leave.

Practical consideration for employers

Employers who pay company sick pay will want to consider how to prevent abuse of the system by employees claiming additional annual leave (and pay) by stating they were sick during their holiday, on their return.  Enforcement of notification of sickness procedures (eg reporting to their manager and requiring medical evidence) may go some way towards avoiding such abuse.

For more information about the crossover between annual leave and sickness absence and employees’ rights to carry over holiday to another leave year, please contact a member of the Floyd Graham & Co team on 01604 871143 or fgmedia@floydgraham.co.uk.

This update is for general guidance only and does not constitute definitive advice.