Court judgement will make employers sick

2009

The European Court of Justice is going to win few friends among employers following an extraordinary ruling that means employees who are ill during their holiday can demand extra holiday from their employers to make up for it.

The court, ruling on a case brought by a Spanish council worker who was injured shortly before taking his annual holiday but was not allowed to move his holiday by his employer, stated that statutory holiday can be "reallocated" if it was spoilt by sickness.

"If the worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period", the ruling states.

Under the terms of the judgement, employees would even be allowed to carry any annual leave marred by illness over into the next holiday year.

The potential for abuse here is obvious. An employee could simply increase their amount of holiday by claiming they had been sick.

But as Owen Warnock, a partner at London law firm Eversheds, told People Management magazine, the ruling is unlikely to open the floodgates to a stream of "super sickies":

"Until the European or UK courts say otherwise, our view is that employers are entitled to require workers to produce convincing evidence of their illness while on holiday and that it would have rendered them unfit for work before allowing workers to 'reallocate' holidays," he said.