Sick leave? Annual leave?

Sickness absence traditionally increases over the winter period with people catching coughs, colds and flu which they just cannot seem to shake. We may even see another surge of swine flu. So what do you do if an employee returns from annual leave saying that they have been sick for a period of it?

The European Court of Justice (ECJ) has recently ruled on this predicament. In the case of Pereda they concluded that where a worker has fallen ill during a period of previously booked annual leave, they have the right to take that annual leave another time. The employee must be allowed to reschedule their holiday.

The ECJ made a distinction between the purpose of annual and sick leave. They said that annual leave was a period away from work to allow employees rest and relaxation, and sick leave is to enable recovery from illness. The right of employees to annual leave irrespective of a period of sickness was deemed necessary to protect the health and safety of employees. Previous House of Lords and ECJ rulings mean that workers can also take annual leave whilst on sick leave and receive their normal rate of pay.

Employers should review their sickness absence procedures in light of this judgement.

To make sure you are effectively tackling sickness absence please see our article on the NICE guidelines on managing sickness absence which we covered in our May edition and HSE’s webpages on sickness absence at http://www.hse.gov.uk/sicknessabsence/index.htm