The European Court of Justice recently ruled that workers who are sick whilst on pre-arranged holiday leave are entitled to request extra leave in order to make up their minimum leave entitlement under the Working Time Directive.
The rationale is that all workers should be entitled to a minimum of four weeks' rest and relaxation a year, which they are not getting if they are sitting sick at home or in a hospital bed. Critics say this decision leaves the system open to abuse, with the potential for employees to (falsely) claim to be ill on holiday to obtain further paid holiday. Head of Commercial Law at Coles Miller Solicitors, Neil Andrews feels that, "Whilst true, there is no reason why employees should be any less truthful about this than about being ill on any ordinary day when they might prefer not to come into work."
Indeed, the impact of this decision is less onerous than suggested in many newspapers. First, the employee has to actually ask for the extra holiday, and take it in the same leave year (unless it's not possible to take it in the same year, in which case it can be carried over). Second, by changing the status of his or her absence from paid holiday to sick absence, the employee loses the right to holiday pay for the days they have been ill and will just be entitled to SSP (which is nothing for the first three days, and then £79.15 per week), unless their contract entitles them to greater levels of sickpay.
As always please feel free to contact Neil Andrews for further information or with any employment queries on 01202 673011.