Retail Motor Law

Recently the European court has decided that an employee who was sick at the same time that they had booked annual leave is entitled to take the annual leave at a later date.

The Court stated that in the case Pereda v Madrid Movilidad SA  that employees should only lose the right to annual leave at the end of the holiday year if they have had the opportunity to take that leave.

This case follows on from another case earlier in the year ( Stringer v HM Revenue and Customs) in which the ECJ ruled that employees could accrue and may be able to take leave during sick leave, but it did not rule on whether employees lost their holiday if it was not taken.

The decision in Pereda appears to be incompatible with the UK Working Time Regulations 1998 which specifically prohibit employees from carrying over holiday to a new holiday year.

Key Points

·         In Stringer – the ECJ said employees accrue and may be able to take holiday during sick leave.

·         In Pereda the ECJ said if sick leave prevents employees taking holiday they can  take it later if necessary in the next leave year.

·         This decision conflicts with UK law, which may need changing

So where does these leave employers? 

Whilst waiting for further clarification employers should agree holiday accrued during sick leave will be taken. The safest approach is to encourage employees to take their holiday each year. If this cannot be done then the employee and an employer should agree what can be carried over to the next holiday year.