Holiday illness to be classed as sick leave

Posted 27/09/2012

The European Court of Justice (ECJ) has held that a worker who becomes unfit for work during a period of statutory annual leave must, under Article 7(1) of the EC Working Time Directive, be entitled to reschedule the period of planned leave that coincides with the period of unfitness for work.

However, workers in Great Britain are not necessarily entitled to enforce the “rights” set out in the Directive, since a Directive itself is only binding on member states, not on all employers.

Workers cannot bypass domestic legislation and bring a claim based solely on the Directive (unless the employer is a public sector body and the Directive is itself capable of having direct effect). This is important, because the Working Time Regulations 1998 do not appear to allow workers to reschedule statutory holiday or carry it over to the next leave year.

Nevertheless, courts and tribunals are obliged, if possible, to interpret the Working Time Regulations in light of the recent ECJ’s decisions. In two cases in 2011, the Employment Appeal Tribunal seemed to accept that a sick worker’s holiday entitlement under the Working Time Regulations can carry over to the next leave year.

Philip Bushill-Matthews MEP, said, “On the face of it this may seem like a good move for employees, but at this present time there is a good chance that it will just add to Britain’s already critical unemployment woes.”

Norman Lamb, the employment relations minister has also publicly regarded the proposals to extend the rulings of the ECJ into law as “barmy” and “massively open to abuse”. He stated: “Most employees accept that if they fall ill while on holiday, it is unfortunate but they do not expect extra holiday. This judgment reinforces the need for a reassessment of the scope of the Working Time Directive.” The Government itself estimates that adopting the rules will cost employers more than £100 million each year.

Employers will be understandably concerned that these recent rulings could prompt staff to falsely claim ‘sickies’ while on holiday. Having a clear and rigorous process for reporting sickness will be more crucial than ever, and workers should be aware that any such abuse could lead to disciplinary action.

Please contact us if you would like to talk about how to deal with the relationship between holiday rights and sickness in light of these recent high-profile decisions.