Sickness during holiday leave

The European Court (in the Pereda case) has recently considered the situation of an employee who is sick during a period of holiday leave. The Court decided that in these circumstances the employer should grant the employee a new period of leave. If necessary, the employer should extend the period during which such leave may be taken into a new leave year.

The Pereda case (which was a European decision) has been applied in the UK in a recent tribunal case. The employee broke his ankle and took three months off work. He had already booked four weeks of annual leave to be taken during the three-month period. His employer refused to allow the employee to reschedule the leave. The employee made claims under the deduction from wages legislation and also under the Working Time Regulations.

The tribunal held that the employee was entitled to take the leave at some time during the following leave year. This was the case to comply with European law and could be achieved by implying appropriate words into the Working Time Regulations.

Notes for employers

This decision is not binding on other tribunals and it remains to be seen how the appellate courts would deal with this issue. Employers may be wise to consider dealing with the situation specifically in sickness absence policies laying out the procedure to be followed in the event of sickness during a holiday (i.e. reporting it and providing proof at the time). This may act as a deterrent to the less than scrupulous employee who may be tempted to abuse the current position.

The Team:

Employment