Workers can reschedule holidays if sick during annual leave

The European Court of Justice (ECJ) has ruled that workers who go on sick leave during a period that has been scheduled as annual leave should be allowed to reschedule their holidays, even if that means allowing annual leave to be carried forward into a subsequent holiday year.

The ruling follows a House of Lord's judgment in Stringer V HMRC earlier this year, which won employees the right to accrue annual leave whilst they were on sick leave. Last week’s ECJ ruling stated 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.”

In a briefing, law firm Eversheds said: “In essence the ECJ is saying that workers who are on sick leave have a choice: they can take annual leave if they wish, but if they would prefer not to do so they can insist on postponing their annual leave and taking it at a later date, possibly even in a subsequent leave year if it is not possible to schedule leave before the current year ends.”

The briefing added that further clarification is still needed on whether staff who don’t take their annual leave due to illness can carry leave over to the next year.

The firm advised: “Employers that don’t allow leave to be carried forward risk a tribunal finding that they have breached the Working Time Regulations (WTR). The risk is greater for public sector employers.”

Owen Warnock of Eversheds said that the ruling left many grey areas. He commented: “Many employers take the view that if an employee is sick while on holiday that is just bad luck for them. The European Court has now said that this is not allowed by the Working Time Directive. What if a worker falls ill after their annual leave has started? When this happens what evidence of illness must the worker produce in order to have their leave reclassified? After all if they were not on holiday the employer would have to accept a self-certificate for the first week of sickness.

"The danger of abuse is clear: an employee could increase his or her holiday entitlement by ensuring that in most years they alleged they were sick while on holiday. It may only be the occasional 'bad penny' employee who does this, but the resentment that it would create with colleagues should not be underestimated.

“Until the European or UK courts say otherwise, our view is that employers are entitled to require workers to produce convincing evidence of their illness while on holiday and that it would have rendered them unfit for work before allowing workers to ‘reallocate’ holidays.”