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New ruling on holiday sick leave

New ruling on holiday sick leave
Monday, 14 September 2009 23:00

In another unusual ruling by the European Court of Justice (ECJ) employees will have additional rights when on holiday. Employees will have the right to ask for holiday leave back if it has been affected by illness.

The case is based on on a Madrid council worker who just before he was due to go on holiday suffered an injury. Employers refused his requests to change his holiday period due to the absence.

The ECJ have ruled that an employee has the right to request that holiday leave be reallocated when it has been affected by injury or sickness. The ruling went on to say that the employee should be permitted to take his holiday entitlement at a different time. Furthermore, the entitlement should be capable of being carried forward into the next holiday year.

The concern is that this impacts within the UK as it is a reinterpretation of the Working Time Directive. This is applicable to all UK workers.

Katja Hall, director of HR policy at the CBI, expressed employer concerns at the decision.

Ms Hall said: Many firms already take a common sense and sympathetic approach. But allowing employees to re-classify their holiday as sick leave opens the door to abuse.

The ruling echoes a judgment handed down by the House of Lords in the case of a group of Customs workers, which stipulated that employees can accumulate holiday entitlements while on long-term sick leave.

Making its judgment, the ECJ said that if a worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period.

The wording of the ruling does not define the time at which an illness can affect the taking of a holiday, or when employees must report the illness to their employers to qualify for a rearrangement of their leave.

In the instance of Mr Pereda, the injury occurred after he had booked his holiday but before he had started his leave period.

Some lawyers believe that the ruling does not necessarily prevent workers who have already begun their holidays from asking to reallocate leave in the event of illness or injury.

Under the current rules on sick leave, employees can self-certify sickness for up to seven days. After that, they must have a doctor's note in order to continue on sick leave.

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