Employees who fall sick during annual leave now have the right to carry their holiday over to a later date

A landmark ruling by the European Court of Justice (ECJ) has found that employees who are ill during their annual leave have the option to reallocate the holidays which they were unable to take due to illness. The decision is applicable to employees who become sick either before or during holidays.
The ruling strengthens the rights of the employee, but appears to have a negative effect in terms of both absence levels and cost to the employer.

1. Verification of the sickness was not brought up in the ruling, so the BWF would recommended that employers should follow their sickness absence policies consistently for employees on holiday and at work. This would involve reporting sickness to an appropriate line manager within specific timeframes, requesting sick notes where appropriate, and ensuring sufficient justification is recorded for refusing any requests. Currently, employers can self-certify sickness absence for up to seven days and can generally only request a sick note after seven days. Obtaining sick notes abroad may create additional costs for the employee, but employers would not be obliged to pay the employee’s costs in obtaining said note.
2. Employers may wish to review their policies in relation to contractual and statutory sick pay schemes to minimise the implications of the ruling. Although following the company sickness absence policies rigorously and consistently would minimise the risks of exploitation, the ruling may still be open to abuse from some employees. In practice, it may be that an employee who is only entitled to statutory sick pay would be less likely to raise the issue than an employee with generous contractual terms, as the latter would be taking home more pay during the sick-leave period. An employee on sick leave is still permitted to take paid annual leave during a period of sick leave.
3. It follows from the ruling that where an employee does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period, even if this means carrying it over to another annual leave year. This implication still needs to be reconciled with the Working Time Regulations.
4. The ruling may have consequences for employers that have shut-down periods. There may be instances where the employer will be required to accommodate additional holidays outside the shut-down periods and, depending on the level of cover, may need to engage additional overtime to cover the absences.