Sickness and Holiday Leave - Update

The EC Working Time Directive lays down minimum health and safety requirements for the organisation of working time. The purpose of the entitlement to paid annual leave is to enable a worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave, however, is to enable a worker to recover from illness. Recent case law has led to some confusion over a worker’s rights under the Directive.

In Pereda v Madrid Movilidad SA, the European Court of Justice (ECJ) ruled that a Spanish worker who suffered an accident at work, with the result that he was on sick leave for most of the annual leave period allocated to him, had the right, on request, to reschedule his holiday, even if this meant carrying it forward to the following leave year.

In the UK, Regulation 13(9) of the Working Time Regulations 1998 (WTR), which implement the EC Directive into UK law, states that leave may only be taken in respect of the leave year in which it is due.

In Shah v First West Yorkshire Ltd., the Leeds Employment Tribunal (ET) was faced with circumstances that were ‘essentially the same’ as those in Pereda. Mr Shah had booked four weeks’ holiday from 22 February to 21 March 2009, but in January he broke his ankle, as a result of which he was absent from work through ill health from 15 January to 18 April 2009. By the time he returned to work, a new leave year had begun. Mr Shah asked to claim back the holiday he had booked before his accident but his employer refused.

In the light of earlier case law, the ET ruled that the employer was wrong. The ECJ’s decision in Pereda had clarified the situation. In order to comply with the Directive, national law must allow an employee who suffers from sickness during a period of annual leave to take that leave at a later date. If, as in Mr Shah’s case, time does not permit this within the current leave year, then the leave can be carried forward.

Employment Judge Forrest held that adding words to Regulation 13(9) of the WTR in order to cover the ‘limited and special' situation dealt with in Pereda was ‘entirely consistent with the underlying thrust of the legislation’. Therefore, in order to make the WTR compliant with the Directive, he would construe Regulation 13(9) by adding words to the effect:

“…save where a worker has been prevented by illness from taking a period of holiday leave, and returns from sick leave, covering that period of holiday leave, with insufficient time to take that holiday leave within the relevant leave year; in which case, they must be given the opportunity of taking that holiday leave in the following year.”