Wright, Johnston & Mackenzie Solicitors

The Update

As you may have heard our Liam Entwistle discussing on BBC Radio Scotland this morning, employees who are ill whilst on holiday can now claim the time back from their employers

Employees who are ill during annual leave can now claim the time back from their employers following a landmark ruling by the European Court of Justice.

The Court’s judgement provides that employees have the right to ask for annual leave to be “reallocated” if they are ill whilst on holiday. Employees will be entitled to carry over any annual leave impaired by illness into the next holiday period.

The case concerned an employee of Madrid City Council, Francisco Pereda. Mr Pereda was due to take a month of annual leave in the summer of 2007. However, shortly before he was scheduled to take his time off work he was injured. His employers then refused his request to have his holidays moved to another time. The court decided that Mr Pereda should have been permitted to reallocate his holidays to another date, and, if necessary, that his annual leave could be carried forward to the next holiday period. Although the case related to an employee who became unwell before his leave was due to begin, the court’s judgement specifically provides that if a worker does not wish to take annual leave during a period of sick leave, then annual leave must be granted to the employee for a different period.

The concern is that employees could abuse this right by claiming that they were unwell whilst on annual leave purely as means of extending their holiday entitlement.

Under the terms of statutory sick pay currently, employees can self-certify their illness for up to seven days simply by phoning their employers. For any longer periods they require a doctor’s note. The worst case scenario is that an employee could phone their employer whilst the employee was on holiday abroad and claim that they were ill – taking the time off sick rather than using their annual leave.

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The Solution

Abuse of this ruling can be prevented by the appropriate policies being implemented by employers.

Employers should ensure that their policies in respect of annual leave provide that if employees are unwell whilst they are on annual leave:

• employees must contact their employers as soon as practicably possible;
• employees will not be able to self certify that they are unwell; and
• employees must obtain satisfactory medical evidence to certify that they are unwell, which so far as possible should be a doctor’s note, and this evidence should be delivered to the employer as soon as practicably possible.

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Further Information

If you would like to discuss this matter then please contact our Liam Entwhistle (.(JavaScript must be enabled to view this email address)) or Martin Stephen (.(JavaScript must be enabled to view this email address)).

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