The European Court of Justice (ECJ) recently decided in the case of Vincente Pereda v Movilidad SA [2009] that a worker who falls ill on holiday can choose to take the holiday lost to sickness at a later date. If the holiday cannot be re-arranged for the same leave year then the worker must be given the right to carry over the holiday to the following year. The judgment follows on from Revenue and Customs v Stringer & ors [2009], which gave workers on long-term sick leave the right to continue to accrue holiday, and while member states may allow such holiday to be taken during sick leave, the ECJ in Pereda held that a worker cannot be precluded from taking it at a different time. The ruling will therefore compel employers to grant a new period of holiday for workers who lose holiday to unexpected sickness, if the worker so requests. In addition, the ability for employers following the Stringer judgment to allocate part of the sick leave as holiday to prevent an unmanageable build up appears to have been blocked (unless the worker agrees). The end result seems to be that employees can choose to do what suits them best.
So what should employers do now?
For private employers, the Pereda decision does not have any direct effect and so they may be able to argue that the Working Time Regulations (WTR) – which do not allow employees to unilaterally change their holiday dates – still apply, and wait for the government to change them. However, this approach may be risky as an employment tribunal could be persuaded that the WTR are capable of interpretation so as to give effect to the Pereda decision. The more prudent course of action is to assume that Pereda applies, and to review and amend any sickness policies accordingly. This means removing any prohibition on reclaiming holiday lost to sickness and, to prevent abuse, ensure that notification and certification procedures apply equally to sickness absence during a pre-booked holiday. For those employers paying only statutory sick pay, abuse will no doubt be less likely. However, where contractual sick pay is paid, thought should be given to ways in which the entitlement may be subject to additional hurdles (such as medical evidence for shorter periods) where sickness coincides with holiday. As always, such action is not straightforward and employers will need to proceed with care.
Revenue and Customs v Stringer & ors [2009] UKHL 31
Vincente Pereda (Free Movement of Persons) [2009] EUECJ C-277/08
