The European Court of Justice (ECJ) has recently looked at whether workers who become ill during a period of annual leave are able to take that annual leave at a later date.
Under the Working Time Directive (WTD), workers are entitled to four weeks annual paid leave each year. Following a referral from a Spanish Court, the European Court of Justice (ECJ) has recently looked at whether workers who are sick during those four weeks’ minimum annual leave can reclaim it and use it at a later date, irrespective of when they become sick (i.e. before or during that annual leave).
Under the UK law which governs workers’ entitlement to annual leave, the Working Time Regulations (WTR), full time workers are entitled to a minimum of 5.6 weeks’ annual leave (more easily translated as 28 days!). It is important to emphasise at the outset that the ECJ judgment that we report here only applies to the four weeks minimum leave under the Directive.
Facts in brief
A Spanish collective agreement allowed workers to reschedule a planned period of paid annual leave where it coincided with a ‘temporary disability’ resulting from pregnancy, but did not contain an equivalent provision for workers with general ill health.
Various trade unions obtained a declaration from the Spanish National High Court that workers covered by the collective agreement who fell ill during annual leave must be allowed to take the affected leave at a later date. On appeal, the Tribunal Supremo in Spain referred to the ECJ the matter of whether a worker who falls ill during a period of statutory annual leave is able to take that leave at a later date.
The ECJ’s decision
The Court started by reiterating several key propositions already established under EU law:
- The entitlement to paid annual leave is an important principle under EU law.
- The right to annual leave cannot be interpreted restrictively.
- Annual leave and sick leave have different purposes - the purpose of entitlement to paid annual leave is to enable a worker to rest and to enjoy a period of relaxation and leisure. This differs from sick leave which is given to workers to allow them to recover from an illness that has caused them to be unfit for work.
It also referred to previous case law of the ECJ which ruled that a worker who is on sick leave during a period of previously scheduled annual leave has the right to take that annual leave at a different time (Pereda).
In this case, the ECJ concluded that it would be contrary to the purpose of annual leave to grant that right only if the worker was already unfit for work when the period of annual leave commenced - the right should apply equally where the worker becomes unfit during the period of annual leave.
As noted above, this decision is hot on the heels of a previous ECJ judgment, Pereda, which held that a worker who is on sick leave during a period of previously scheduled annual leave has the right, on request, in order that he may actually use his annual leave, to take his annual leave during a period which does not coincide with his sick leave. ANGED v FASGA now takes matters one step further and clarifies that the same rationale applies where a worker falls sick during their holiday.
As with the Pereda decision, this judgment has the potential to cause problems for employers, especially those with generous company sick pay schemes. The concern is that workers could abuse the system and falsely claim that they were sick during holidays and postpone annual leave to a later date. In other words, workers could try and secure themselves extra holiday.
For example, an employee returning to work after a two week holiday in the South of France who looks tanned and rested may claim to have spent most of their holiday in bed with gastroenteritis, claim sick pay and take their holiday at a later stage. Or, some workers who genuinely fall ill during their holidays might stay off sick until the end of the ‘holiday period’ when they in fact recovered earlier, but still ask for their entire holiday period to be rescheduled.
Employers are right to be concerned about this case law but EEF can help you regain some control in responding to this decision. For example, we can help you fine-tune your notification and evidence requirements for employees who fall ill during a holiday.
For example, you could amend your policy so that it requires the worker to:
- notify you on the first day they fall ill, and maintain contact each subsequent day (unless there are exceptional circumstances);
- put their request to reclassify the period of leave in writing;
- meet with their manager for a return to work interview; and
- obtain a medical certificate from the first day of their sickness, rather than self-certificate for the first week of their sick period (though there may be a charge for this).
Don’t forget to ensure that your disciplinary policy makes it clear that falsely claiming to be sick/falsely claiming sick pay is a disciplinary offence.
Proposed changes to the WTR
In June 2011, the government consulted on amending the WTR following concerns that they did not implement the Directive’s requirements as set out in Pereda. It proposed that the WTR be amended so that ‘ . . . where a worker falls sick during scheduled annual leave he will be able to reschedule the annual leave at a later date, including carrying it over if it is not possible to reschedule in the current leave year’.
This proposal, if implemented, would mean that the WTR would comply with both the Pereda and ANGED decisions. We await the governments’ response to the consultation, so watch this space! Pending amendments to the WTR (which we now think unlikely until 2013), tribunals are likely to interpret UK legislation in line with the ECJ's decisions.
For more information on holidays and sickness absence generally – see our mini-guide, which has been updated to reflect this latest ECJ judgment. The mini-guide also addresses the thorny issue of whether the ECJ principles outlined in this case should be applied to the full 5.6 weeks’ leave to which full-time workers are entitled under the WTR.
Click here to see the full judgment in ANGED v FASGA