Now that the summer holiday season is underway, we have received a number of queries about what happens if someone is off sick during a period of annual leave. The law in this area has changed and has left many employers unsure about their position.
So if you have an employee whose holiday is ruined by a bout of Delhi belly, or who breaks their leg during their ski trip, does that mean that they get their leave back to use again at a later date?
The first key case dealing with this point was decided by the European Court of Justice (ECJ) in 2009. The case of Stringer stated that if employees are prevented from taking their holiday because they are off sick, they should be allowed to take their holiday when they return from sick leave, even if this means carrying it over to the next leave year. However, that case involved someone on long-term sickness absence.
The next development was another ECJ decision in the case of Pereda. This time, the judgment made it clear that someone who is off sick during a period of pre-booked annual leave should have the right to reschedule their holiday. However, that decision was made on the basis of the Working Time Directive under EU law, and not the Working Time Regulations which apply specifically in the UK. The wording of the Regulations does not appear to allow statutory leave to be rescheduled or carried forward.
There has since been an Employment Tribunal case of Shah v First West Yorkshire Limited (2009) which found that it was possible to interpret the Working Time Regulations in line with Pereda. In that case, where a worker was off sick during a period of pre-booked annual leave he was entitled to carry over his entitlement to the next leave year. However, because this decision is only at the Employment Tribunal level and has not been appealed to the higher courts, it does not bind any other Employment Tribunals. It is however useful guidance on what other Tribunals might do.
It is worth noting that these cases only relate to the statutory annual leave under the Working Time Regulations, and not any extra leave the employer may give under the contract of employment. However, in practice it is very difficult to separate the two. For now, the safest approach for employers is to allow employees to reschedule their holiday, but that is likely to be unpopular with managers and is potentially open to abuse by employees. It would be risky to refuse a request to reschedule annual leave as things currently stand, but it is worth remembering that employers are still entitled to expect employees to comply with absence reporting procedures even when they are on annual leave (and potentially abroad). Another point to note is that it is for the employee to raise the issue – many employees will not be aware of the legal developments and although it is unsatisfactory, organisations could keep quiet about this as far as possible until the law becomes clearer. We will of course keep you updated on any developments on this topic as and when they happen.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])