Employment e-Brief – Sickness during Holiday

Thursday 16th September 2010

Following a landmark judgment in the European Court of Justice, workers who fall ill during their holidays could now claim the time back from their employers.

The case concerned Francisco Pereda who works for a vehicle impounding department at Madrid City Council.  Mr Pereda was scheduled to take a month’s annual leave in the summer of 2007, however, was injured shortly before the annual leave was due to start and was refused a request to move his holiday by his employer, Madrid Movilidad.

After hearing Mr Pereda’s case, Judges decided that he should have been allowed to take his holiday at another date and, if necessary, that it could be carried forward to the next holiday year. The judgment stated that if a “worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period”. 

The Effect of the Judgment

The ruling in this case is effectively a new interpretation of the European Working Time Directive on workers’ hours which applies in Great Britain across both the public and private sector.

The effect of the judgment is wide ranging and is a significant departure from the recognised position in respect of annual leave and sickness. It means that employees who fall ill prior to a scheduled period of annual leave can reschedule this leave, even if this means that leave will be carried forward to a subsequent leave year.

Further, the judgment could also be interpreted as meaning that employees who fall ill during a period of annual leave can now claim back any holiday which they lost due to sickness.  Whilst previously it was understood to simply be a case of “bad luck” if an employee fell sick during a period of holiday, employers who fail to allow an employee to reschedule any lost days of leave risk a tribunal finding that they have breached the Working Time Directive.

The ruling was silent on the issues of when an employee should contact their employer to inform them that they are sick or what proof of illness is required.  Clearly, however, the ruling could be costly for businesses and is open to abuse by unscrupulous employees seeking to extend their holiday entitlement by claiming to have had a cold or flu while they were on leave.

If you have any queries in relation to the information contained in this e-brief please contact a member of the employment team.