The European Court of Justice (ECJ) has recently ruled that employees who fall sick during their annual leave have the right to re-take that annual leave at a later date, irrespective of whether the sickness absence commenced before or during period of paid holiday.

The Court made the ruling following a case involving a trade union and a group of department stores in Spain. The ruling emphasised the distinction between sick leave and paid annual leave, asserting that sick leave entitlement had the purpose of allowing “a worker to recover from an illness that has caused them to be unfit for work,’ whereas paid annual leave was there “to enable the worker to rest and enjoy a period of relaxation and leisure.’

It has previously been established under EU law that a worker who falls ill or is injured prior to a period of annual leave should be allowed to retake the annual leave at a different time.  This decision confirms that the same principle applies if the worker becomes sick during their period of annual leave.

The judgement and subsequent ruling obviously poses the risk of potential employee abuse to employers. Whilst business owners must comply with the law in respect of sick leave or else face claims of infringing an employee’s right to paid annual leave, detailed records should be kept on employees’ personnel files so that any recurring patterns of sickness can be dealt with accordingly.

Employers should also bear in mind that the ECJ recognised that it may be difficult to retake the annual leave during the reference period, particularly if the illness occurred towards the end of the holiday year. Where this situation occurs, employees are to be able to ‘carry over’ any unused leave into the following year’s entitlement.

The UK Government is planning to amend the Working Time Regulations 1998 to take account of the European Court of Justice’s decision on sickness absence during annual leave.

If you require advice on employee sickness absence or any other aspect of employment law, please contact us to speak to one of our employment lawyers.

By Sally Eastwood, Trainee Solicitor