Employees who become ill while on annual paid leave will be allowed to retake the time off, the European Court of Justice (ECJ) recently confirmed following a new case.

This latest ECJ ruling, made on 21 June, 2012, was triggered by a case brought by unions in Spain on behalf of department store employees to protect their right to reclaim leave if it is spoilt by ill-health.   The unions brought their case to the ECJ after Spain’s National Association of Large Distribution Businesses (Asociación Nacional de Grandes Empresas de Distribución, or ANGED) attempted to restrict its use.

ANGED said that staff too sick to work before starting a period of pre-arranged leave or who were affected during this holiday should not be entitled to take it again at a later date.  But the ECJ affirmed that workers are entitled to take more holiday if they were sick during the original period of leave.  “The right to paid annual leave cannot be interpreted restrictively,” the court said.

The purpose of paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure, while sick leave entitlement enables a worker to recover from an illness that has caused him to be unfit for work. “The point at which the temporary incapacity arose is irrelevant. Consequently, a worker is entitled to take paid annual leave which coincides with a period of sick leave at a later point in time, irrespective of the point at which the incapacity for work arose,” the court ruled.

The judgement also said it would be “arbitrary and contrary” to the point of paid holiday entitlement to grant workers the right to paid leave if they are already unfit for work when the period of paid annual leave starts.

The right to retake holiday if an employee falls ill during their time off caused controversy when it was first ruled in 2009.  The decision, a reinterpretation of the working time directive, followed the ECJ’s ruling on the Stringer case, earlier in 2009, that holiday continues to accrue during sick leave. Stringer found that a worker could carry leave forward, even into the next year, if he or she is “unable to take leave through no fault of his own”.   But this case left questions about what would happen if sickness coincided with scheduled leave.

The court has now ruled that employees should have the right to ask for statutory leave to be reallocated in these circumstances, even into the next holiday year.

Comment

Could this be the most blatant piece of madness yet?  How does a shocking hangover or sunstroke figure?