Sickness and Annual Leave – Recent European Court of Justice Decision Blatantly Favours Workers

In the case of ANGED v FASGA, the European Court of Justice deliberated on whether a worker was able to take leave at a later date when it fell during a period of statutory leave.

The Facts

A number of trade unions acquired a declaration from the Spanish High Court that any worker who became unwell during a period of statutory leave could take their affected leave at a later date. The matter was referred to the European Court of Justice.

The Decision

The European Court of Justice surmised that the Working Time Directive prohibits any national law which deprives a worker of the right to take a period of new statutory leave at anytime where it corresponds to any sick leave needing to take place during a period of statutory leave. Its rationale was as follows:

  • Every worker is legally entitled to paid annual leave, and the Charter of Fundamental Rights of the EU, which enshrines this important principle of EU social law, cannot be interpreted restrictively.
  • The purpose of annual leave is to enable a worker to enjoy a period of relaxation and leisure. As opposed to sick leave which enables a period of recovery from an illness that caused any inability to work.
  • The European Court of Justice held in the case of Pereda v Madrid Movilidad SA [2009] that a worker who is on sick leave during a period of previously scheduled annual leave has the right to take the leave at a later date. To ignore this ruling and deny that it cannot cover the situation at hand would simply in its opinion be arbitrary and contrary to the statutory provisions of annual leave.

What Next?

The UK Government is planning to amend the Working Time Regulations 1998 to take account of the current case law.

What Does This Mean For You?

This means that any worker who falls sick during a period of leave is entitled to have the right to reschedule that leave to a time for when they are well. If necessary, such leave can be taken outside the annual leave year in which the absence occurred. However, the entitlement only applies to statutory leave, and workers will still need to comply with any sickness reporting processes/procedures you may have in place. If you feel these are not robust or embedded properly by way of a policy for instance, you should seek legal advice.

Should your contractual sick pay be generous it would be worth considering the removal of any enhanced pay during any period of sickness absence that coincides with a holiday. Provided the matter is handled properly it will prevent any worker capitalising on the situation.

A well designed process for sick leave and pay will prevent any worker capitalising on the situation. At the very least the removal of enhanced pay during any period of sickness absence which coincides with a holiday should be removed. Should you opt to go down this route you will need to make sure the change process is managed properly in order to prevent a successful Tribunal claim being made.