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With a landmark European ruling allowing workers to claim back holidays lost due to sickness, employment law experts are urging employers to take the initiative in tackling the new requirements, to avoid being caught out.
This is a new style of duvet day – a Sunshine Sickie ruling – that could cost businesses thousands in lost working hours, unless they prepare themselves to avoid abuse.
The ruling is effectively a new interpretation of the European Working Time Directive on workers’ hours, which applies in Britain across the entire private and public sector.
Delivered this week, the ruling by the European Court of Justice held that workers on sick leave during what would otherwise have been their holiday, have the right to take annual leave “at a time other than originally scheduled, if necessary outside the corresponding reference period”.
This will allow employees who are ill during holiday leave to request it be ‘reallocated’ to another time, including carrying their annual leave over into the next holiday year. If employers fail to allow the revised holiday slots they risk an employment tribunal under a breach of the Working Time Directive.
To avoid abuse by employees, companies need to take action now to update their employment contracts. The principle applies no matter what is in your current contract of employment, so you can’t contract out of this, but a well drawn contract of employment can ease the burden of the ruling.
It’s a complex area where companies will need specialist technical advice. It may change in future, but the new ruling doesn’t specify how or when employees should notify their sickness, so employers can ask for convincing evidence to prove the sickness would have made them unfit for work. That could include asking for a doctor’s note, in addition to any usual self certification procedure.
Taking time to ensure employees understand company policy now could pay off later.
Clearly this is a crucial area and Gamlins’ team of employment law specialists is available to assist. >Contact your nearest Gamlins Office.
Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.
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