Annual leave and sickness absence – again
In ANGED v Federación de Asociaciones Sindicales and others, the Court of Justice of the EU has ruled that workers who are ill during annual leave are entitled to take paid leave at a later date, irrespective of whether they became sick before or during their holiday. The re-scheduled period of annual leave may, if necessary, be carried over to the following holiday year.
The ruling is in line with the 2009 decision of Pereda v Madrid Movilidad SA. In that case the ECJ held that a worker who had an accident at work shortly prior to his arranged period of annual leave was entitled to reschedule his holiday for a later date. The ANGED decision takes employees a step further in that it confirms, what had widely been thought, that an employee who falls ill during a holiday can, in effect, interrupt their annual leave and take the remainder of the leave at a later date.
It should be remembered that these European decisions conflict with the Working Time Regulations which do not permit the carry forward of unused leave into the next annual leave year (although UK tribunals are obliged, if possible, to interpret the Regulations in light of European case law, e.g. Shah v First West Yorkshire Ltd).
Many employers are waiting for the government’s response to its 2011 ‘Consultation on Modern Workplaces’ before making a policy decision on this issue. The consultation proposed amending the Regulations to provide (in relation to 4 weeks of the statutory 5.6 week annual leave entitlement only) that:
- A worker who has been unable to take annual leave during sickness absence, or falls sick during scheduled annual leave, will be able to carry it forward into the next leave year.
- Employers will be able to insist that leave that is unused in such circumstances should be either (i) taken in the current leave year if there is still an opportunity to do so, or alternatively (ii) carried forward where there is a business need.