The Working Time Regulations 1998 (WTR) have been interpreted by an Employment Tribunal so as to allow workers who fall sick during a period of annual leave to request to reschedule the effected period of annual leave, even if this results in the leave being taken in a subsequent annual leave year.
In Shah v First West Yorkshire Limited, S broke his ankle shortly before his four weeks of annual leave. S was on sick leave for the whole of the four week holiday period and did not return to work until the after the start of a new annual leave year. When S asked to re-claim his holiday entitlement FWY told him the days were lost.
The ET found that the WTR could be interpreted in accordance with the European Court of Justice's decision in Perada (reported in the Employment Law Brief on 18th September 2009) in which it was held that national law is required to permit a worker who falls sick during a period of previously scheduled statutory holiday to reschedule that holiday at a later date. The ECJ held that the purpose of paid annual leave is to enable a worker to rest and enjoy a period of relaxation and leisure whilst the entitlement to sick leave is to allow a worker to recover from illness.
Best Practice
Public sector employers were already bound by the ECJ's decision in Perada. However, this case has for the first time given effect to the decision across the private sector. In light of this decision we recommend that you amend your sickness and annual leave policies to allow employees the right to re-claim
holiday if they are sick, but also to ensure that they contain a clear procedure on how such holidays can be re-claimed i.e. how and when sickness should be reported.
If you would like help reviewing your polices or further advice on the implications of this case, please contact Alison Graham on 0117 314 5304.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
