Working Time Ruling – Sick Leave

In very welcome and positive development a little publicised ruling from the European Court of Justice, workers who fall ill during their annual leave will now be entitled to reclaim back those days of annual leave for use at another time.

The recent ECJ ruling states that if a member of staff is taken ill whilst on annual leave that such a period should be classed as sickness absence and the staff member should retain the right to reclaim back those days of annual leave for use at another time.

The decision, prompted by a Spanish trade union brought against a department store chain, is legally binding throughout the EU including the UK despite the UK’s opt-out, which only applies to working hours.

In the case known as Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others (Case C-78/11 ECJ) the ECJ stated that: “The purpose of entitlement to paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different, since it enables a worker to recover from an illness that has caused them to be unfit for work.”

“This decision confirms that the same principle applies if the worker is incapacitated before his or her holiday and the illness or injury continues into the annual leave period.”

The UK Government has to amend the Working Time Regulations 1998 (SI 1998/1833) to take account of the ECJ case law on sickness during annual leave. At present there is no timetable for the implementation – so expect the Government to delay things.

Some British employers already give staff the right to reclaim holiday time if they fall sick including the BBC.

But some business groups such as the  Federation of Small Businesses have urged the Government to “avoid implementation of any ECJ ruling on annual leave and sick leave for as long as possible”.

This blog first appeared on the TUC’s Stronger Unions site on July 13th.

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