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Home / Yorkshire / Ward Hadaway: Employment Focus

Ward Hadaway: Employment Focus

Ward Hadaway: Employment Focus
News
September 21 2009
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    Harmajinder Hayre

Harmajinder Hayre
Partner
T: 0113 205 6712 

WardH                     

               

 

 Sickness over annual leave

Just as the summer holiday season has come to an end, there’s yet another annual leave decision that’s likely to cause employers an almighty headache!

The European Court of Justice (ECJ) has recently ruled that workers who fall sick while on holiday should be allowed to reschedule their leave, even it if means within the next leave year. This could lead to the following scenario. A worker books his remaining 5 days annual leave during the Christmas and New Year period, but falls sick throughout the leave period. According to the recent ECJ decision, the worker is entitled to retake the leave in the following year, on top of the annual leave entitlement for the year in question. Earlier this year another ECJ case ruled workers can accrue holiday pay while on sick leave, and that holiday should be allowed to be carried forward into the next leave year. In response, in April the Government amended the Working Time Regulations 1998 (“WTR”) to provide that no more than 8 days leave may be carried forward in to a subsequent leave year.

The most recent case touching this issue concerned a worker who was engaged as a driver for a company. The worker had pre booked a period of annual leave from 16 July to 14 August. However, prior to taking his leave, there was an accident and he was unfit to work until 13 August. On the basis that he had been on sick leave throughout his allocated annual leave period, he asked his employer to allocate him an alternative period of leave. Not surprisingly, they refused.

The ECJ decided that if a worker is sick during a period of scheduled annual leave, he or she has the right to take that leave during a period which does not coincide with a period of sick leave, even if this means that they will have to carry the annual leave over to the following year. An employee may choose to take annual leave whilst off work with an illness, however, if they refuse to do this, they are entitled to take annual leave on alternative dates. The ECJ commented that “the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill”.

Concerns

A concern which many employers will have is that workers may try to abuse this ruling by returning from their annual leave and claiming that they were sick throughout this period to gain additional annual leave.

A further issue for an employer may also be the level of proof which they require from the worker to prove that they have been ill during their period of annual leave. For example, will the worker be entitled to self-certify their sickness during the period of their annual leave or will convincing evidence need to be provided?

With the onset of the colder months and the predicted outbreak of swine flu it’s highly likely that workers will seek to exercise their right to reschedule annual leave if they fall sick while on holiday.

At present public sector workers can gain the benefit of the ECJ decision. Workers in the private sector will have to await the amendment of the WTR’s. However, this is unlikely to stop private sector workers seeking to assert their rights and private sector employers are likely to be faced with similar requests. In any event, the Government will need to amend the WTR’s to reflect the ECJ decision which will mean that it will apply equally to private sector workers in the future.

Practical guidance for employers

1. Require the worker to phone you on a daily basis if they are sick while on holiday, to confirm that they are still sick and not fit for work as opposed to simply allowing the worker to inform you on their return to work.
2. Require the worker to provide a doctor’s note evidencing their sickness during the holiday period as opposed to simply self certifying.
3. Put in place accurate systems to record sickness absences while on holiday leave, credit back holiday and override holidays taken
4. It’s essential to communicate clearly, preferably in writing what the worker’s obligations are around reporting and the consequences of a failure to follow the reporting obligations or misleading the employer. Consider amending your sickness absence, holiday leave and disciplinary procedure.
5. At present a distinction can be drawn between private and public sector workers, so if in the private sector be prepared with a response, just in case the worker returns from a long sunny break, tanned and healthy, to tell you on his return that he’s spent the last 14 days in bed with flu in the Maldives rather than on the beach!

Harmajinder Hayre is a Partner in the Employment Team at leading North law firm Ward Hadaway. He can be contacted on 0113 205 6712 or at harmajinder.hayre@wardhadaway.com  

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