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Thursday 4th April 2013
A recent European Court of Justice ruling established that workers who fall ill during annual leave can legally ask for it to be rescheduled, explains Mark Stevens.
8 April 2013
Indeed, some employees get caught out in the most unlikely of circumstances.
Consider Paul Marshallsea from Merthyr Tydfil who, while on sick leave from a children's charity since April 2012, was recently filmed on an Australian beach grabbing a six-foot shark to prevent an attack. He's now been sacked even though he could have been genuinely hurt.
In other situations, managers could be forgiven for lacking sympathy with a worker who returns from a holiday complaining that they were sick during their annual leave and that they couldn't properly enjoy it - particularly if the worker is sporting a suspiciously healthy looking tan.
However, a European Court of Justice case, Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales, deals with just this situation, and it does come to a very clear and potentially surprising conclusion: a worker who is unwell during their annual leave can require that their annual leave be rescheduled to a later date. A worker cannot be unwell and take their annual leave at the same time. How does this work in practice and what do line managers need to know when handling these situations?
The impact of sickness on annual leave
A worker continues to accrue statutory holiday during sickness absence, even if they are absent for the whole holiday year. This means that a worker who has exhausted their sick pay entitlement could request to take paid holiday during their sickness absence. It is generally agreed that workers who are not permitted to take their statutory holiday while they are on sick leave are allowed to carry holiday over to the next holiday year.
But what happens when a worker becomes sick before or during their annual leave?
The ANGED v Federación de Asociaciones Sindicales
A Spanish collective agreement did not allow for workers to postpone annual leave where
it coincided with sick leave for general ill heath. The matter was eventually referred to the Court of Justice of the European Union (CJEU).
The CJEU held that EU law excludes any national laws that do not allow workers to take the annual leave that coincides with a 'period of unfitness' at a later date. The CJEU distinguished between the purpose of annual leave and the purpose of sick leave. Annual leave enables workers to enjoy a period of relaxation and leisure; sick leave enables workers to recover from an illness. It would go against the purpose of annual leave to allow a worker to reschedule a period of leave only if he was already unfit for work when the annual leave commenced.
The CJEU also held that the rescheduled period of annual leave may be taken outside the relevant holiday year if necessary.
Best practice
Managers will have to be flexible in their approach to their worker's requests to postpone annual leave if they are sick before or during their holiday. UK courts and tribunals will need to seek to interpret current UK legislation in a manner compatible with the CJEU's decision. The government is consulting on amending UK regulations to reflect the European position.
With this in mind, HR departments should have clear policies in place for managers setting out the circumstances in which workers will be entitled to reschedule annual leave.
There should also be a requirement that the usual notification and evidence requirements are met by a worker who claims to be sick, in whatever circumstances. A worker may be inclined to 'take advantage' of the opportunity to reschedule holiday if they are only required to telephone their manager first thing in the morning on their day off in order to confirm that they would prefer to take that day off as sick leave.
This also ensures a consistent approach to absence across the business and avoids someone returning to work after a week's holiday complaining of being too ill to enjoy their holiday.
It's also wise to have a policy that a worker may only reschedule their statutory holiday entitlement, as opposed to any additional contractual entitlement. A full-time worker is entitled to a statutory minimum of 5.6 weeks (28 days) leave per year. Some businesses may offer more than the minimum level of holiday entitlement and, if so, the annual leave policy should make clear that the opportunity to reschedule holiday will only apply to the statutory element of their holiday entitlement.
Consequences if the rules are not followed
The UK courts and tribunals are yet to hear a case from a worker arguing that they were not allowed to reschedule holiday because of sickness. It is likely that where a complaint is well-founded, the tribunal will make a declaration to that effect and may make an award of such compensation as is fair in all the circumstances, having regard to the manager's failure and any loss sustained by the worker as a result.
Workers could also potentially pursue a claim in an employment tribunal if they suffer a detriment as a result of asking their manager to reschedule their holiday as a result of sickness. Managers should bear this in mind when considering the worker's request and ensure that it avoids treating the worker differently in the future as a result.
Mark Stevens is a solicitor at Veale Wasbrough Vizards
It doesn't take much of a search on Google to find stories of staff taking 'sickies' when they aren't really unwell.
Indeed, some employees get caught out in the most unlikely of circumstances.
Consider Paul Marshallsea from Merthyr Tydfil who, while on sick leave from a children's charity since April 2012, was recently filmed on an Australian beach grabbing a six-foot shark to prevent an attack. He's now been sacked even though he could have been genuinely hurt.
In other situations, managers could be forgiven for lacking sympathy with a worker who returns from a holiday complaining that they were sick during their annual leave and that they couldn't properly enjoy it - particularly if the worker is sporting a suspiciously healthy looking tan.
However, a European Court of Justice case, Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales, deals with just this situation, and it does come to a very clear and potentially surprising conclusion: a worker who is unwell during their annual leave can require that their annual leave be rescheduled to a later date. A worker cannot be unwell and take their annual leave at the same time. How does this work in practice and what do line managers need to know when handling these situations?
The impact of sickness on annual leave
A worker continues to accrue statutory holiday during sickness absence, even if they are absent for the whole holiday year. This means that a worker who has exhausted their sick pay entitlement could request to take paid holiday during their sickness absence. It is generally agreed that workers who are not permitted to take their statutory holiday while they are on sick leave are allowed to carry holiday over to the next holiday year.
But what happens when a worker becomes sick before or during their annual leave?
The ANGED v Federación de Asociaciones Sindicales
A Spanish collective agreement did not allow for workers to postpone annual leave where
it coincided with sick leave for general ill heath. The matter was eventually referred to the Court of Justice of the European Union (CJEU).
The CJEU held that EU law excludes any national laws that do not allow workers to take the annual leave that coincides with a 'period of unfitness' at a later date. The CJEU distinguished between the purpose of annual leave and the purpose of sick leave. Annual leave enables workers to enjoy a period of relaxation and leisure; sick leave enables workers to recover from an illness. It would go against the purpose of annual leave to allow a worker to reschedule a period of leave only if he was already unfit for work when the annual leave commenced.
The CJEU also held that the rescheduled period of annual leave may be taken outside the relevant holiday year if necessary.
Best practice
Managers will have to be flexible in their approach to their worker's requests to postpone annual leave if they are sick before or during their holiday. UK courts and tribunals will need to seek to interpret current UK legislation in a manner compatible with the CJEU's decision. The government is consulting on amending UK regulations to reflect the European position.
With this in mind, HR departments should have clear policies in place for managers setting out the circumstances in which workers will be entitled to reschedule annual leave.
There should also be a requirement that the usual notification and evidence requirements are met by a worker who claims to be sick, in whatever circumstances. A worker may be inclined to 'take advantage' of the opportunity to reschedule holiday if they are only required to telephone their manager first thing in the morning on their day off in order to confirm that they would prefer to take that day off as sick leave.
This also ensures a consistent approach to absence across the business and avoids someone returning to work after a week's holiday complaining of being too ill to enjoy their holiday.
It's also wise to have a policy that a worker may only reschedule their statutory holiday entitlement, as opposed to any additional contractual entitlement. A full-time worker is entitled to a statutory minimum of 5.6 weeks (28 days) leave per year. Some businesses may offer more than the minimum level of holiday entitlement and, if so, the annual leave policy should make clear that the opportunity to reschedule holiday will only apply to the statutory element of their holiday entitlement.
Consequences if the rules are not followed
The UK courts and tribunals are yet to hear a case from a worker arguing that they were not allowed to reschedule holiday because of sickness. It is likely that where a complaint is well-founded, the tribunal will make a declaration to that effect and may make an award of such compensation as is fair in all the circumstances, having regard to the manager's failure and any loss sustained by the worker as a result.
Workers could also potentially pursue a claim in an employment tribunal if they suffer a detriment as a result of asking their manager to reschedule their holiday as a result of sickness. Managers should bear this in mind when considering the worker's request and ensure that it avoids treating the worker differently in the future as a result.
Mark Stevens is a solicitor at Veale Wasbrough Vizards