Employees who are sick during their holiday can take that holiday entitlement at a later date
The European Court of Justice (“ECJ”) has confirmed that an employee who falls ill during a period of paid annual leave is entitled to take the affected days as paid annual leave at a later date.
The ECJ had decided in 2009 in the Spanish case of Pereda that an employee who became ill prior to a pre-arranged period of annual leave and whose ill-health continued throughout the period of annual leave was entitled to take such holiday at a later date. It was never certain if the same situation applied when an employee fell ill during the course of his holiday. The Spanish courts referred this question to the ECJ in a separate case.
The ECJ reiterated the comment it made in the Pereda case that “the purpose of entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different. It is given to the worker so that he can recover from an illness that has caused him to be unfit for work”. The ECJ decided that it is irrelevant whether the employee became incapable of work before or during the pre-arranged period of annual leave. In both scenarios the employee is entitled to take their annual leave at a later point in time.
Although the press has expressed concern about this decision it was always assumed that this was the likely outcome. The UK Government commented in its May 2011 ‘Consultation on Modern Workplaces’ that if an employee fell ill during scheduled annual leave he would be entitled to reschedule the annual leave at a later date and this included carrying the annual leave into the next holiday year, if necessary.
The Government was, at the time, only referring to the roll over of the EU minimum statutory holiday entitlement of four weeks’ of annual leave. Until the recent ECJ decision in Neidel it has been unclear if the Government should have extended this period to the UK’s more generous minimum statutory holiday entitlement period of 5.6 weeks. In the Neidel case, the ECJ confirmed that employers only need to allow sick workers to roll over up to 4 weeks of any annual leave that they were unable to take in that holiday year. Employers (and EU member states) may, of course, choose to be more generous than this if they wish.
Neidel v Stadt Frankfurt am Main
For further information or to discuss the issues raised, please contact Emma Clark or David Widdowson on +44 20 3051 5711.