Interpreting | 2009.09.15
Staff can reclaim leave lost to sickness
European court rules workers can claim back holiday time lost to sickness
UK employers\' representatives have reacted with dismay to a legal ruling in the European court that will allow workers to claim back holiday time lost to illness.
The Federation of Small Businesses (FSB) said the consequences for its members could be "highly detrimental", while the Chartered Institute of Personnel and Development (CIPD) went further, describing the judgment as being "divorced from the real world".
However Unison, the biggest public sector union, welcomed the verdict, saying it was good news for workers. "If employees are ill, then they are obviously not enjoying a holiday," a spokesman said. "They should be able to take their agreed time off when their health has improved."
The ruling hinged on the case of Francisco Pereda, a Madrid council worker, who took legal action against his employer after being refused the right to alter his leave arrangements because of an injury suffered just before he was due to go on holiday.
The European court of justice in Luxembourg ruled in favour of Pereda, stating that he should have been able to alter his holiday arrangements and given the option to postpone his leave and add it to his entitlement for the following year.
Employment law experts said there was a chance the result could be interpreted as giving workers the right to claim extra holiday time even if they have been taken ill after their leave has begun.
"The danger of abuse is clear – an employee could increase his or her holiday entitlement by ensuring that in most years they alleged they were sick while on holiday," said Owen Warnock, a partner at law firm Eversheds.
He said most employers currently took the attitude that it is "bad luck" for employees if they fall ill while on holiday.
Ben Wilmott, senior public policy adviser at the CIPD, described the judgment as "extremely disturbing", adding that "It may be logical for lawyers, but it is a ruling completely divorced from the real world."
The ruling is effectively a reinterpretation of the European working time directive , which already applies across the UK.
It does not specify at what point the employee should notify the employer of injuries sustained, or what proof would be necessary. But the wording of the judgment states that if a "worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period".
Sophie Kummer, of the FSB said "[The ruling] is something that could be highly detrimental to small businesses, especially with the extra administration costs and so on. We\'ll see how it plays out in the UK, but it could be a serious business for our members."
Wilmott added that, as a consequence of the ruling, employers could be forced to review relatively generous occupational sick pay schemes and consider opting for statutory sick pay schemes instead.
"If ever there was a case of the law of unintended consequences, this could be it," he said.
For more information, please visit
http://www.guardian.co.uk/money/2009/sep/15/holiday-sickness
