A recent ruling by the European Court of Justice (ECJ) states that employees who go on sick leave during a period of annual leave should be allowed to reschedule their holidays, even if that results in annual leave entitlement being carried forward into a new holiday year.
The ruling follows the House of Lord’s judgment in Stringer V HMRC earlier this year, in which employees were given the right to accrue annual leave whilst they were on sick leave.
The ECJ ruling states that where an employee “does not wish to take annual leave during a period of sick leave, annual leave must be granted to him or her for a different period.
The ruling effectively provides employees who are on sick leave with a choice: they can take annual leave if they wish, or they can insist on postponing their annual leave and taking it at a later date.
Further clarification is required on whether staff who don’t take their annual leave due to illness can carry leave over to the next year. Many employers have taken the view that it is simply a matter of luck if an employee falling ill whilst on holiday. The European Court has now said that this is not allowed by the Working Time Directive.
The ruling has left many grey areas. What if a worker falls ill after their annual leave has started? What evidence of illness must the worker produce in order to have their leave reclassified? Can an employee still self certify for the first seven days of illness?
There are a number of risks to employers. Employees could abuse the system and effectively increase their holiday entitlement by alleging they were sick whilst on holiday. Whilst this may be limited to a few employees, abuse could lead to resentment amongst other employees, which should not be underestimated.
Until further clarification is available, Simple HR recommends all clients continue to require employees to produce evidence of their illness while on holiday, and to ensure the illness would have rendered them unfit for work before reallocating holidays.