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Right to defer holiday until after sick leave

Posted on 16th September 2009
Case law

The ECJ, on 10 September 2009, has decided that a worker whose annual leave coincides with a period of sick leave must have the option to take their annual leave at a different time.

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Public sector employers must now allow workers to take holiday at another time where they have been unable to do so because they have been sick

Pereda v Madrid Movilidad SA

You may also be interested in reading our later articles Sickness during holidaySickness absence and the entitlement to payment on termination of employment for untaken holidayEntitlement to statutory holiday pay is lost if not requested by employee on long-term sick leave and Holidays and sickness absence.

Background

In this case Mr Pereda was due to take annual leave between 16 July and 14 August 2007. He suffered an accident and was in fact on sick leave from 3 July to 13 August 2007. Mr Pereda asked his employer to agree an alternative period of annual leave. This was refused.

The labour court of Madrid asked the ECJ to provide a decision on whether, under the European Working Time Directive ('the Directive'), an employer can prevent a worker taking annual leave which could not be taken due to sickness.

The decision

The ECJ concluded:

  • The Directive requires that workers have the right to take annual leave at a later date if the annual leave coincides with a period of sickness; and
  • The right to annual leave can only be lost (for example at the end of a holiday year) if the worker has had the opportunity to take their entitlement to annual leave.
In reaching its decision the ECJ recognised the difference between sick leave (the purpose of which is to enable the worker to recover from illness) and annual leave (which is to provide a period of rest and relaxation away from the workplace).

In practice

The ECJ helpfully summarised the implications of its decision in practice:

"A worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave."

It therefore remains possible for workers to opt to take their annual leave during a period of sickness but equally they are now entitled to request (and be granted) annual leave on another date.

As with the Stringer case this decision gives rise to questions and also differences going forward for public and private sector workers.

Does the decision apply only to the four weeks' annual leave provided for under the Directive, or to the more generous provisions (5.6 weeks) of the Working Time Regulations? This is unclear and is likely to remain so until the government amends the Regulations.

Public sector workers

For public sector workers this case will have an immediate impact under the principle of 'direct effect'. Public sector employers must now allow workers to take holiday at another time where they have been unable to do so because they have been sick. This will include allowing the worker to carry over any unused holiday from one leave year to the next if their sick leave has prevented them from taking it.

Private sector workers

The impact of this case is less likely to be immediate in the private sector. The Regulations do not provide for the carry forward of annual leave and nor do they provide a right for a worker to change the dates on which they wish to take annual leave. It is likely that government intervention and a change to the Regulations will be required before private sector employees can enforce this decision.

What should you be doing?

All public sector employers should review their policies on holiday and sick leave immediately to ensure that appropriate amendments are made to give effect to this decision. Thought should also be given to what (if any) evidence will be required from the worker that they were sick and are entitled to take their annual leave on a different date. Prudent private sector employers should also takes steps to review their policies and procedures.  

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