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GN Law Media: What happens if you are sick when on annual leave?

Sick on leave? - Asociación Nacional de Grandes Empresas de Distribución

In a collective action brought by a number of Spanish trade unions, the European Court of Justice has held that an employee who is sick during annual leave is entitled to treat that period as sick leave and take their annual leave at a later date.

The ECJ codified previous European case law in this area and reiterated that the purpose of annual leave as per the Working Time Directive is to allow all workers a period of rest and relaxation. Entitlement to paid sick leave has a very different purpose and the two could not therefore be considered interchangeable in this scenario.

We will need to see how this decision is interpreted by the UK courts but given the clear ruling it seems likely that they will consider any schemes contrary to the above to be unlawful under the Working Time Directive.

Whilst it would be difficult to dispute this in instances where an employee becomes incapacitated for work by some serious illness, in practice this could prove an administrative nightmare for employers where employees take sick leave for minor illness such as a cold or the flu. At present most employers will require a sick note from a doctor for a period of sick leave over a certain number of days, but what if an employee claims, for example, that during a two week holiday in Marbella they were laid up in bed and incapable of work for days? They should in principle be able to recover two days of annual leave entitlement to use at a later date. This would be extremely difficult for the employer to verify other than clamping down of medical proof for all periods of sick leave.

It seems unlikely however that this potential for abuse would affect the vast majority of employer-employee relationships where in reality small periods of sick leave for everyday illness are taken on the basis of trust and confidence.

The government may well seek to respond to this ruling in its continuing response to the Modern Workplace consultation.

Michael Henson-Webb

Solicitor, 11.06.12

Posted on Wednesday, 11th July 2012