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Report from Law Now - 18 September 2009
Period of sickness occurring during holiday
The European Court of Justice (ECJ) has held in Pereda v Madrid
Movilidad, that employees who are sick during scheduled annual
leave should be permitted to reallocate their holidays, even
into the next holiday year.
In 2007 Mr Pereda was injured and he requested his employer to
allocate a new period of paid annual leave on the ground that he
had been on sick leave during the period of annual leave
originally allocated to him.& nbsp; His employer rejected the
request. The ECJ ruled that his period of sick leave should not
have counted towards his holiday time on the basis that
employees are entitled to a minimum period of 4 weeks paid
annual leave under the Working Time Directive (WTD). The ECJ
emphasised the right of employees to a period of actual rest for
relaxation and leisure during annual leave, as opposed to sick
leave during which an employee is recovering.
This decision is a new interpretation of the WTD; following the
ECJ and the House of Lords’ recent rulings on the Stringer case
that holiday continues to accrue during sick leave. The House of
Lords decision in Stringer means that a worker is entitled to
take paid annual leave even though they are not at work due to
extended sick leave. The question of what would happen if
sickness coincided with scheduled leave was not addressed in the
Stringer case. Although unlikely to be welcomed by employers,
the ECJ’s ruling in Pereda has helpful addressed this void
however it remains unclear whether employees will be able to
claim retrospectively.
As a result of the decision on Pereda, employers should be
prepared to manage attempts by workers to exploit the ECJ’s
decision. A worker could effectively increase their entitlement
to annual leave by alleging that they were sick whilst on
holiday. Strict requirements on supporting medical evidence
should be enforced to avoid abuse.
The judgment is immediately effective for public sec tor
employers but private sector workers may not be able to benefit
from this decision until the Government amends the Working Time
Regulations. Most employers therefore have time to consider
their policies and perhaps even implement changes before the law
changes.
For further information, you can contact:
Anthony Fincham
London
+44 (0) 20 7367 2783
Sarah Ozanne
London
+44 (0)20 7367 2650
Jennifer Gordon
Aberdeen
+44 (0)1224 622002
at Law-Now
http://www.law-now.com
Law-Now@cms-cmck.com
Tel: +44 (0)20 7367 2106
Fax: +44 (0)20 7367 2000
CMS Cameron McKenna LLP
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