THE Working Time Directive – implemented in the United Kingdom in 1998 – now allows workers to take 5.6 weeks of paid annual leave in each holiday year.
The entitlement has been subject to a number of case law decisions since its introduction on such matters as accrual during long-term absence and entitlements for part-time workers.
The European Court of Justice has recently handed down an important decision relating to the legal position where an employee is ill or injured during a period of annual leave.
It has now been decided that such a period of illness during a holiday does not count towards an employee’s minimum legal annual leave entitlement.
The result is that, as long as the employee can satisfactorily certify their absence – usually by way of the submission of a doctor’s note – then if they are ill during their holiday, this period of time shall be taken as sickness, meaning the employee must be granted a replacement holiday period.
The reasoning behind this decision lies in the purpose behind the minimum paid annual leave provisions.
The entitlement to annual leave is there to allow a worker to rest and enjoy a period of relaxation and leisure. If a worker is sick during this annual leave period, they are deprived of being able to rest and relax.
The burden of additional costs as a result of the above decisions could not have come at a worse time for many businesses – and it is a sign of the strength of the Working Time Regulations that these decisions have been made.
The recent ECJ decision should not, however, affect annual leave entitlement offered by an employer which is over and above the statutory minimum of 5.6 weeks.
So, where an employee has exhausted their minimum entitlement and is absent during a period of annual leave, the employer may direct that the absence is taken as annual leave and not sick leave.
A contractual term clarifying this would be advisable here.
The ruling will come as another blow to employers, who have already had to deal with a previous European decision on sickness absence. In February, 2009, the ECJ held that all workers are entitled to up 5.6 weeks of holiday pay for each year they are on sick leave.
This overruled previous case law which suggested that workers on long term absence could not claim holidays or holiday pay for the time they were absent, nor could they claim a lump sum for lost holiday if they left their employer before returning to work.
Many commentators had expressed both surprise and concern at the ruling, not least because of the huge expected cost to employers of administering such payments, particularly in light of the difficult economic climate.