With winter approaching fast, questions have been raised over what to do if workers are sick at a time when they were due to be on annual leave. In a recent case, one employee who was injured just before he was due to take annual leave. Richard White, specialist employment solicitor at Withy King, considers this case further.

The case: Pereda v Madrid Movilidad SA

Facts

Mr Pereda was employed by Madrid Molivad SA, a firm dealing with the removal of wrongly parked cars in Spain as a specialist driver.

In 2007, in accordance with Madrid Molivad SA’s staff leave schedule, Mr Pereda was allocated a period of annual leave from 16 July until 14 August. However, a few weeks before he was due to take this leave, Mr Pereda suffered an accident at work and was consequently on a period of sick leave until 13 August 2007.

This meant that was an overlap between the time Mr Pereda was due to be on annual leave and the time he was off sick, leaving him with only two days of annual leave left once he was well enough to return to work.

As a result of this, Mr Pereda asked his employer if his annual leave could be reassigned to be taken from 15 November 2007 until 15 December 2007.  Madrid Molivad SA rejected this request but did not put forward any reason for their rejection. 

Claim

Mr Pereda brought a claim against his employer in the labour court in Madrid arguing that under Article 7 of the European Directive he was entitled to four weeks paid annual leave per year.

Article 7 provides that Member States should ensure that every worker is entitled to at least 4 weeks paid annual leave per year and that this minimum period of paid annual leave cannot be replaced by an allowance in lieu except where the employment is terminated.

Decision

The Spanish Court was unsure as to how Article 7 should be interpreted and whether it would apply to Mr Pereda’s circumstances so turned to the European Court of Justice (ECJ) for guidance.

The ECJ stated that a workers entitlement to paid annual leave under Article 7 must be regarded as a particularly important principle of community social law from which there should be no derogation.

The ECJ stated that although national law may lay down conditions for the exercise of the right to paid annual leave, including the loss of that right at the end of the leave or carry over period, this must be subject to the condition that workers have had the opportunity to exercise this right.

The ECJ went on to state that a period of annual leave differs from a period of sick leave as annual leave is designed to allow workers to relax, whilst sick leave is to allow workers to recover from illness.

It was therefore decided that as Mr Pereda was on sick leave whilst he was due to be on paid annual leave, he had the right, at his request to take his period of annual leave at a time which did not coincide with his period of sick leave. The ECJ went on to say that although Mr Pereda had this right, if the alternative period that he requested was not possible based on the arrangements made by any other parties involved, then he must be given an alternative period at another convenient time even if  this meant carrying his annual leave forward into the next holiday year.

Comment

The above case suggests that the Working Time Regulations 1998 (‘WTR’) will need to be amended as it appears to render them in adequate in two respects; firstly regulation 15 of the WTR gives the worker no right to object to their employer’s notice to take leave on particular dates, or to cancel or re-arrange a period of annual leave which the worker had originally requested.

However, the Pereda case makes it clear that a sick employee should, in effect, have the right to choose whether or not to take annual leave regardless of any agreement with the employer. The second inadequacy is that under regulation 13(9) of the WTR it is clearly stated that four weeks of statutory annual leave can only be taken in the year to which they relate and cannot be carried forward. This case appears to completely undermine this by saying that in some cases carry over may be necessary in order to preserve workers rights under Article 7.

Under the doctrine of ‘direct effect’, public sector workers may be able to benefit from the Pereda decision immediately. However, private sector workers will most likely need to wait for amendments to be made to the WTR before they are able to fully benefit from this judgment.

Although some employers already allow workers to reschedule annual leave if it coincides with a period of sickness, the Pereda case suggests that all employers will soon have to follow the same procedure and can no longer view it as bad luck if a worker suffers illness while they are on leave.

The main concern for employers, however, is likely to be the risk of workers abusing this decision by returning from periods of leave appearing healthy but announcing that they have been in bed ill for the duration and demanding that their holiday be reinstated. Unfortunately at present, there is no requirement for a worker to produce a doctor’s certificate confirming their sickness during any period of annual leave so employers will have to exercise caution in this respect and look to review their policies and procedures accordingly.

For further advice, please contact Richard White, specialist employment solicitor at Withy King, 01865 268636 or mail to richard.white@withyking.co.uk

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