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Employees who fall sick whilst on holiday can retake time off

Published 02 July 2012

In its latest ruling, the European Court of Justice has confirmed that workers who fall sick during their annual leave will now be able to claw back the days they were ill. In Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others C-78/11 it was recognised that “a worker is entitled to take paid annual leave which coincides with a period of sick leave at a later point in time, irrespective of the point at which the incapacity for work arose”. The ECJ’s ruling has full, immediate effect in the UK, regardless of the type or size of employer.

Alison Loveday of Berg commented: “This ruling supports the ECJ’s earlier decision that if workers fall ill before their annual leave, then they are allowed to suspend their leave so that it does not clash with their period of sickness absence.

It should be noted that under the Working Time Directive (EU legislation), workers are entitled to at least 4 weeks' annual holiday. The Working Time Regulations 1998 implemented in the UK exceed this requirement by providing for 5.6 weeks. This raises the question of whether the ECJ's decisions as to the Directive's requirements apply only to the minimum four weeks' leave under the Directive, and have no relevance to the additional 1.6 weeks' under the Regulations.

The Government already has proposals in the pipeline to amend the Regulations in the light of ECJ case law to clarify that sick workers may reschedule and carry over untaken holiday entitlement in some circumstances. The proposed changes apply only to the 4 weeks' minimum leave required by the Directive and not to the additional 1.6 weeks' annual leave provided for by the Regulations.

It remains to be seen how this latest ECJ ruling will be interpreted by UK Courts and also whether the Government will propose further amendments to the Regulations to reflect the decision. It is likely however that it will only apply to 4 weeks annual leave in line with the Government’s existing proposals. This case highlights the influence European legislation is continuing to have on UK employment law. The Working Time Regulations are on the face of it more generous than the European directive, and this may lead to some anomalies when applying the law in this area.”

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.)

Nigel Crebbin
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Berg Solicitors
0161 817 2817

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