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Ruling on workers' holiday sickness rights raises more questions for employers, expert says

A European court ruling has found that workers who fall ill while on holiday are entitled to subsequently take paid annual leave covering the period they were ill. This case poses difficult procedural questions for businesses, an employment law specialist has said.22 Jun 2012

Earlier this week the European Court of Justice (ECJ) ruled that the EU's Working Time Directive bans "national provisions" that state that workers are not entitled to reschedule paid annual leave covering a period of illness they experienced whilst on a break.

In ruling over a case involving Spanish trade unions the Court said that it was "settled case law" that the right to paid annual leave was a "particularly important principle of European Union social law from which there can be no derogations" and that the right had been written into both EU employment law and the text outlining the cornerstone rights underpinning all EU legislation.

It also said that the right "cannot be interpreted restrictively" and that ECJ case law had already determined that individuals that either fall sick during a period of "previously scheduled annual leave" or prior to their annual leave but remain sick during an overlapping period of that leave, are entitled to reschedule holidays at a later date. The Court added that it is "irrelevant" when a worker falls sick when determining whether workers are entitled to paid annual leave on top of sick leave.

"The worker is entitled to take paid annual leave which coincides with a period of sick leave at a later point in time, irrespective of the point at which the incapacity for work arose," the ECJ said in its ruling. "It would be arbitrary and contrary to the purpose of entitlement to paid annual leave ... to grant the worker that right only if he is already unfit for work when the period of paid annual leave commences."

In that context, the Court has already held that the new period of annual leave – corresponding to the duration of the overlap between the period of annual leave initially scheduled and the period of sick leave – to which the worker is entitled after he has recovered may be scheduled, if necessary, outside the corresponding reference period for annual leave," the Court said.

"In the light of all the foregoing ... [the Working Time Directive] must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work," it ruled.

However, employment law expert Maria Passemard of Pinsent Masons, the law firm behind, said that there is uncertainty among employers over what procedures they should follow to confirm that individuals were ill whilst on holiday.

"When we discuss this issue with clients one issue that frequently arises is how an individual should prove that they were ill when they were away on annual leave," Passemard said. "They could return from their holiday in Spain and look very tanned and refreshed but complain of having an awful time because they have been unwell."

"Should the employer ask them to phone in sick on their first day of absence (despite being on annual leave) in accordance with the employers normal sickness absence procedures and outline that they want to reschedule their annual leave sometime in the future? What if it is not possible to call in due to time difference if they are in long haul destinations?" she said.

"Should companies require them to obtain a sick note from a doctor whilst on annual leave even for absence of one day in order to prove that they were ill? If the absence is for less than seven days a sick note would not be required under current legislation." Passemard added. "Some companies might want to consider amending their sickness absence policies to require employees who are ill whilst on annual leave to report the fact they are ill to their manager and to obtain a sickness certificate to prove their illness."

Passemard also said that the ECJ's ruling would also leave businesses wondering what to do if employees are consistently or coincidentally ill during periods of annual leave and where they suspect those workers are abusing the system.

"If an employee lies about their illness then this would be grounds for disciplinary action but it is, of course, incredibly difficult to prove," the employment law specialist said. "There is of course the genuine issue that some people will be unwell when they are on annual leave and this can often happen where they are in particularly stressful jobs. When those people stop and slow down/relax they can become ill. Those who are genuinely ill in such circumstances would argue that they should be able to take that leave again as the annual leave did not provide the rest they needed." 

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