The ECJ’s earlier judgment in Pereda v Madrid Movilidad SA held that a worker who becomes ill before a period of statutory holiday must be allowed to reschedule that leave for a later date.
In its recent decision in ANGED v FASGA, the ECJ confirmed that the same principle applies where a worker becomes unfit for work during his holiday period. He can then reschedule that part of his holiday which coincided with the period of illness and take it another time. If necessary, the worker can carry over the holiday into the next holiday year.
In reaching its judgment, the ECJ again emphasised the different purposes of annual holiday (to rest and enjoy a period of relaxation and leisure) and sickness absence (to recover from an illness that caused the worker to be unfit for work).
Practical points for employers
This decision applies only to days when the worker is unfit for work, not just feeling a bit unwell while on holiday.
The entitlement is to reschedule statutory holiday that coincides with being unfit for work, not the whole holiday.
Employers should consider whether additional measures are needed to prevent workers using this decision to claim additional holiday, particularly where contractual sick pay is provided. These may include:
- Amending sickness absence reporting requirements for workers entitled to contractual sick pay, to specifically include those who are on holiday. Workers who are on holiday (regardless of location) should be required to report their absence in the usual way if they want to claim the time off as sick absence, rather than annual leave.
- Carrying out return to work interviews for all workers who take sick leave during a period of pre-arranged holiday.
- Requiring a doctor’s certificate for any absence, which falls during what would otherwise have been holiday, where contractual sick pay is paid.
It is important that any measures are applied consistently to avoid allegations of discrimination.
The UK Working Time Regulations (WTR) do not permit statutory annual leave to be carried over from one holiday year to the next. The government is considering changes to these provisions in order that they comply with recent ECJ case law. In the meantime, tribunals are interpreting the WTR broadly, and employers should consider allowing workers to carry forward any annual leave that cannot be taken due to sickness into the next holiday year (even where it is not normal practice to allow carry-over).