23 February 2010
If you attended our recent seminar, Hot Topics in Employment Law, you may recall our discussing the European case of Pereda. In that case the ECJ held that a worker who was sick whilst on annual leave had the right to take that leave at some other time after his recovery, even if that meant that the leave had to be carried over into the next leave year. This left British employers with some difficulties as the decision was inconsistent with our Working Time Regulations which only allow very limited carry over of holiday from one holiday year to the next.
However, an English tribunal has now considered this issue in light of Pereda and has found that the claimant, who had broken his ankle shortly before he was due to go on pre-booked holiday, was entitled to reclaim that holiday and carry it over into the next holiday year. To get round the inconsistency with the WTR, the tribunal 'read in' extra words to the effect that a worker who has been prevented by illness from taking a period of holiday, and who returns from sick leave, must be given the opportunity of taking that holiday in the following leave year where there is insufficient time to take it within the relevant year.
As this is a first instance tribunal decision it is not binding on other tribunals. However, employment tribunals do try to interpret our legislation in line with ECJ decisions, where possible, so it may well be followed. Employers faced with requests from employees who, in these circumstances, ask to reclaim their holiday, should consider allowing them to do so even if that means allowing them to carry over the holiday into the next holiday year. Employers should also review policies relating to sickness absence and holiday in order to ensure they can manage such circumstances effectively.
If you would like any further information, please email the employment, pensions and incentives unit at Burges Salmon at email@example.com. If you would like advice on a specific instance, please contact Chris Seaton on 0117 939 2000 or email firstname.lastname@example.org, or contact the lawyer at Burges Salmon with whom you usually deal.