Holidays and Sickness Absence
Employment Law solicitor Natalie Ruane examines the question of what to do with staff who fall ill during their holidays.
As the holiday season gets into full swing, the question of what to do with staff who fall ill during their holidays or immediately before that period of pre-booked annual leave has come into focus once again.
Following the decision of the House of Lords in Stringer v HM Revenue & Customs Commissioners  a worker who has been unable to take his or her leave as a result of sickness is entitled to carry over their entitlement from one leave year into the next.
The Stringer decision was followed in the case of Pereda v Madrid Movilidad  in which the European Court of Justice (“the ECJ”) held that, where a worker fell ill before a pre-arranged period of annual leave, the worker must have the option to designate an alternative period as annual leave. This meant that the absence should be classed as sickness absence rather than holiday, with the employee being allowed to take the holiday at another time, if the employee was known by the employer to be ill before the intended holiday absence began.
The important thing about Pereda was that this ability to take the holiday at a later stage was held to apply even to a rota arrangement where holiday was planned in advance with no room left in the rota for extra holiday to be factored in. The ECJ indicated that if the business could not accommodate additional absence in that particular year because of this type of arrangement, the worker should be allowed to carry the leave entitlement over into the next leave year.
One question that wasn’t address in Pereda though was what would happen if the employee fell ill after his or her annual leave had started. The recent case of Anged v Fasga  has, perhaps unsurprisingly, resolved this query in favour of the employee.
In the Anged case the ECJ decided that the point when the worker became ill was irrelevant. The ECJ felt that it did not make sense for a worker only to be allowed to rearrange the leave if he or she was ill before the leave started. Instead, in order to ensure that the objectives of maintaining a clear distinction between paid annual leave (which, in the opinion of the ECJ, is to enable a worker to enjoy a period of relaxation and leisure) and sickness absence (which is granted for a totally different purpose - to enable a worker to recover from an illness that has made him unfit for work), a worker who fell ill during a holiday period should be allowed to reschedule that period of leave.
Although the Anged case was widely reported in the press, it was only a minor extension of Pereda. In addition to which, the government has already announced its intention to amend the Working Time Regulations due to concerns that they are at odds with Pereda and other legal precedents in this area of law.
When looked at in this context, Anged is clearly not a shocking legal development but it does highlight how difficult it can be for employers to deal with sickness absence and it does show, once again, how important it is to have good policies and procedures in place. For example, can the employee self certify his or her ill health or will you require a sick note from a GP before you will consider allowing an employee to re-arrange his or her holiday? Does the employee need to ring in to notify you of his or her ill health on the first day or can he or she just bring the fit note to you on his or her first day back at work following the period of absence? What if the note produced is in a foreign language?
Employers with concerns about whether their policies and procedures are robust enough, or up-to-date with these new developments should contact Natalie Ruane on 01228 552222.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Friday 13th July 2012