Down with Spanish Flu? …don’t lose your holiday because of it.
We all know that feeling, first day of the holiday and down with a hideous virus. Well until recently an employee has had to pull up the duvet and hope for better luck next time a holiday comes around, unless their boss is sympathetic.
A recent European Court decision in the Spanish case of ANGED v FASGA has clarified the law relating to the rights of employees and workers to take holiday time they have missed through sickness. The position is now clear; the individual can re-schedule their leave and even carry it over to the next year if they have to.
In Great Britain an employee or worker is entitled to 5.6 weeks’ paid holiday annually which equates to 28 days leave including public holidays for a full time person. This entitlement is governed by the rather complex Working Time Regulations from 1998, yet despite their complexity they still don’t cover this situation.
In an earlier Spanish case of Pereda v Madrid Movilidad SA the European Court decided that, where an employee or worker's prearranged legal minimum leave coincides with a period of sickness absence, European law requires that they have the option to designate an alternative period for the exercise of the annual leave entitlement. If necessary, the person is entitled to carry that period over to the next leave year and any employer preventing them doing so is acting illegally.
A breach of that right might give rise to a claim for unfair dismissal and compensation. The UK regulations are not specific about carrying over holiday entitlement but employment tribunals must interpret UK law to give effect to employee and workers EU rights.
In Pereda, the worker concerned went off sick before a planned period of legal minimum annual leave but in the ANGED case the European Court looked at the situation when a person falls ill during a period of leave and decided they must also be entitled to reschedule leave which was otherwise lost due to illness.
The Court decided that the entitlement of every worker to paid annual leave is a particularly important principle of EU law. The measure was originally adopted to address health and safety concerns over employees’ lengthy working hours. The Court went on to state that the purpose of paid annual leave is to enable a person to enjoy a period of relaxation and leisure. However, sick leave is to enable a worker to recover from an illness that has made him or her unfit for work.
These decisions may have an impact on both large and small employers especially if a person’s employment subsequently ends. At which time they are entitled to be paid all statutory accrued holiday pay in lieu. That could be a tidy sum, certainly more than a cheap ticket to Marbella.
Some measures can be taken to minimise the impact of this decision. For further information contact employment partner Howard Robson, Warner Goodman LLP, and Vice Chairman of the Chamber’s Tax Finance and Legal Committee.