Workers entitled to postpone paid annual leave if they fall sick during annual leave
26 Jun 2012
The European Court of Justice (“ECJ”) has recently ruled in the case of ANGED v FASGA[1] that “a worker is entitled to take paid annual leave, which coincides with a period of sick leave, at a later point in time, irrespective of the point at which the incapacity for work arose”.
The ANGED v FASGA case is a further development by the ECJ on the issue of workers' entitlement to annual leave when a period of sickness overlaps annual holiday. In Pereda v Madrid Movilidad SA the ECJ held that in line with the EU Working Time Directive (“WTD”), where a worker’s prearranged statutory holiday coincides with a period of sick leave, the worker has the option to reschedule that leave period so that it does not clash with their sick leave.
Therefore, we are now in the position that where an employee falls sick before a period of holiday they have arranged, the holiday can be rescheduled so it does not clash with the sickness period and where an employee falls sick during a holiday they are taking the corresponding period of holiday can be rearranged to be taken at a later point, including during the next leave year.
The ECJ reasoning behind this seems to be fairly simple: annual leave and sick leave have different purposes. The WTD (implemented by the Working Time Regulations in the UK) grants workers a right to at least four weeks’ paid annual leave. The purpose of this holiday is for rest and enjoyment and sick leave is not.
Furthermore, Pereda V Madrid Movilidad SA also held that, in line with the WTD, holiday being re-scheduled for sick leave could be carried over to the next leave year. Whilst for most employers the WTD does not have direct effect on employers in the UK, the Employment Tribunal and Employment Appeal Tribunal (“EAT”) have both indicated that national law can be interpreted in line with the WTD.
The EAT recently concluded in NHS Leeds v Larner (2011) and Fraser v South West London St Georges Mental Health Trust (2011) that a sick worker’s holiday entitlement can be carried over to the next leave year despite any rules to the contrary.
From a practical perspective employers faced with employees trying to rely on these new rules should be ensuring that they ask for the appropriate evidence of sickness before they agree to the postponement of annual leave. For periods of sickness less than seven days this is a signed self-certification form, for periods exceeding seven days this is a doctor’s note. Employers should also note that these rules only apply to the minimum statutory holiday provided by the Working Time Regulations (for full time workers this is 28 days per year including bank holidays) and do not apply to any contractual holiday awarded in excess of this entitlement.
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[1] (Asociación Nacional de Grandes Empresas de Distribución v Federación de Asociaciones Sindicales and others)
