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Holiday and Sick Leave


Holiday and Sick Leave

The European Court of Justice (ECJ) has decided in the case of Pereda v Madrid Movilidad that where a worker has booked holiday leave and then coincidentally is ill during such holiday leave, the worker must be able to take annual leave at an alternative time.

The Law

Under Article 7 of the EC Working Time Directive, the UK Government must ensure that every worker is entitled to paid annual leave of at least 4 weeks. The Directive is implemented into UK law by the Working Time Regulations 1998 (WTR). Workers in the UK are entitled to 5.6 weeks leave per year. Of that 5.6 weeks, 4 weeks must be taken in the holiday year to which it relates. A contract of employment may provide that the worker can carry over the remaining leave.

Facts of the case

Mr Pereda was due to take holiday leave from 16th July to 14th August 2007. However, Mr Pereda had an accident on 3rd July and took sick leave until 13th August. He therefore asked his employer for an alternative period of holiday from 15th November to 15th December but his employer refused. Mr Pereda brought a case before the labour court in Madrid who referred the matter on to the ECJ.

Ruling

The ECJ decided that the entitlement to 4 weeks paid holiday is a particularly important principle of law from which member states cannot depart. The purpose of holiday leave is to enable the worker to enjoy a period of leisure whereas the purpose of sick leave is to allow the worker to recover from illness. Therefore, the worker who is on sick leave during a period which he has booked as holiday leave, must be able to exercise his right to use his annual leave during the period when he is well again. The worker may be allowed to take annual leave during sick leave by the employer but if the worker requests alternative holiday leave then it should be granted.

Public and private sector workers

This situation is somewhat complicated by the wording of the WTR. Decisions of the ECJ only have direct effect in UK law as regards the public sector. Therefore, public sector workers will be able to take advantage of the right to take an alternative period of holiday leave immediately.

Private sector workers on the other hand will not benefit immediately from the decision of the ECJ. The WTR do not give the worker the right to object to their employer's orders to take holiday leave on particular dates. Nor are workers able to cancel and rearrange a period of holiday leave which the worker had already booked. The case of Pereda states that a sick employee should be able to choose not to take their holiday.

Further, the WTR state that only the excess leave over and above 4 weeks may be carried over into the next holiday leave year. The 4 weeks' holiday leave must be taken in the leave year to which it relates. Pereda recognises that it may be necessary to carry any amount (even the full amount) of holiday leave over to the next leave year.

It therefore seems that, if a private sector worker were to bring a case before an Employment Tribunal on the same basis as Mr Pereda, they would not be able to rely on Pereda because the Tribunal would not be able to interpret the WTR in accordance with Pereda. However, it is not unknown for Tribunals to come up with a creative interpretation of the wording of legislation and, if employers decide to refuse to allow an employee to rearrange their holiday leave when they fall ill, then they may unwittingly find that they become involved in a test case before the Tribunal.

In any event, it appears that the Government will have to amend the Working Time Regulations to implement the decision in Pereda in relation to both private and public sector employees in the near future. Employers are therefore advised to be pro-active and ensure that their sickness absence and annual leave policies accord with the Pereda decision.

Matt Smith

 

This article provides a summary of a recent case/change in law/news item. It is intended for general information purposes only and is not to be relied upon. It does not constitute legal advice and should not be treated under any circumstances as a substitute for legal advice. Lees Solicitors LLP does not accept any responsibility for any loss that may arise from reliance upon the information contained within this article. The copyright in this article is owned by Lees Solicitors LLP and permission must be sought before reproduction or publishing.


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