Holiday Entitlement During Periods of Sick Leave - Further Developments
Email Update 58
The recent European Court of Justice decision in the Spanish case of Pereda has provided some further clarification on the question of when employees who are absent from work due to sickness are entitled to take annual leave under the Working Time Directive.
In email update number 52, we reported on the House of Lords decision in Stringer, commenting that their Lordships had not been able to address this important issue under UK law.
Over the past week, there has been a great deal of debate about what the decision in Pereda actually means for UK employers. Below, we discuss what the decision definitely means, what it might mean and what it does not mean.
What did Pereda definitely decide?
The ECJ has definitely decided that where an employee is on sick leave prior to the start of a scheduled period of annual leave, under the Working Time Directive, the employee can choose not to take that period of annual leave, but to take the annual leave at another time once he or she has recovered, even if that means it cannot be taken by the end of the current leave year.
The Court went on to clarify that if an employee wants to take annual leave, even although they are off sick at the relevant time, they are free to do so. This is consistent with the view we have expressed in previous email updates.
Therefore, it now seems clear that in respect of annual leave covered by the Working Time Directive, employees can choose whether to convert their booked annual leave into sick leave or to go ahead and take the annual leave as planned.
What might the Pereda decision mean?
Although it is clear from the judgment that if the sick leave starts before the proposed period of annual leave, the employee can choose whether he or she wants sick leave or annual leave for that period, the situation is less clear where the annual leave starts before the employee falls sick.
The question therefore arises as to whether an employee who is already on annual leave can inform his or her employer that they became sick during their holiday and ask that from the date they fell sick, that period of annual leave should be converted to sick leave.
Doubtless, this question will be considered by a court in due course. In the meantime, we believe that UK employers in the private sector should be able to take a relatively robust view on this issue.
There is nothing in the UK Working Time Regulations which would require a UK employer to convert a period of annual leave which had already started into sick leave, simply because the employee advises the employer that he or she has fallen sick.
It may be that in due course, the Government will amend the Working Time Regulations to clarify this issue. The issue is more problematic for public sector employers, as their employees may be able to enforce their European legal rights directly in the UK.
What does the Pereda decision not mean?
The Pereda decision only applies to the period of annual leave to which an employee is entitled under the Working Time Directive, ie four weeks. It does not apply to the additional period of annual leave granted under UK law of 1.6 weeks per annum, nor does it apply to any additional contractual entitlement to annual leave an employer may give above this.
Therefore, if your employee takes at least four weeks annual leave in any holiday year during periods when he or she would not otherwise have been on sick leave, then their rights under the Working Time Directive will not have been breached.
This means that beyond the initial four week period, you should be able to enforce any rules your organisation has to the effect that holiday leave cannot be converted to sick leave, once the holiday has been booked.
As always, clear and robust rules and policies with regard to the taking of holidays place your organisation in the best position to ensure that holiday and sick pay entitlements are not abused.
Just Employment Law is well placed to assist you with your requirements in this regard.
