It used to be seen as simply bad luck if workers fell sick while on leave, but now it seems that they may be able to claim the time back from their employers.
The European Court of Justice has ruled that a Madrid parking-clamp employee was wrongly denied the right to alter his leave arrangements because of an injury suffered just before he was due to go on holiday. He was ill for all but two days of his fortnight off.
According to the court, annual leave and sick leave are for completely different purposes. The former is to allow a worker time for rest and relaxation; the latter to allow an employee to recover from being ill. Workers have the right to the “actual rest” needed to protect their health and safety.
Under the terms of the judgment, employees off sick at the end of a leave year who have been unable to take all the leave they are entitled to must be allowed to carry it over into the next holiday year. Workers who have been sick for the whole leave year must be allowed to carry their entire leave entitlement into the following 12-month period.
The ruling – a new interpretation of the European Working Time Directive which applies in Britain – seems to be open to abuse. Most obviously, employees in companies that have self-certification for the first seven days of sickness absence could simply phone in to work from their holiday destination to say they are ill and wish their annual leave to be classed as sickness absence.
The judgment leaves open the possibility that employees can volunteer to take their annual leave while off sick; it just means they cannot be forced to do so.
The ruling makes it even more important for employers to have strong policies in place regarding sickness absence. These should include close monitoring of the time employees are off sick to highlight any patterns, and proper return-to-work interviews.