The European Court of Justice (ECJ) has ruled that a worker who is sick during a period of annual leave may decide to postpone his holiday entitlement to an alternative date.

This case builds on the principle established in ECJ cases on the holiday entitlement of those on long term sick leave that sick leave and annual leave are mutually exclusive.

The ECJ ruled that purpose of paid annual leave is to allow a worker to enjoy a period of rest and relaxation, whereas the purpose of sick leave is to allow a worker to recover from illness – there can be no derogation from the right of all workers to have 4 weeks paid annual leave.

The judgment stressed that a worker’s right to paid annual leave does not end where the worker has been on sick leave during the leave year and has not had “the opportunity to exercise” his right to annual leave.  However the ECJ accepted that workers on sick leave may take paid annual leave during a period of sickness.  The ruling is likely to apply irrespective of whether the employee falls ill before or during his scheduled annual leave.

Comment

Since most companies in the UK offer relatively limited amounts of sick leave at full basic salary employees may choose not to re-designate periods of holiday when they are unwell as “sick leave”.  However employers will need to consider procedures for obtaining a clear record of the employee’s choice in such cases, to avoid difficulties in reclaiming any “overpayment” of holiday pay and later arguments about how much holiday an individual has taken through the year.

For further information or to discuss the issues raised, please contact Colina Greenway (colina.greenway@abbisscadres.com) on +44 (0) 203 051 5711.

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