Holiday sickness clocks up annual leave
September 2008 saw the the European Court decision of Pereda decide that where an employee is ill during his statutory annual leave, he is entitled to be re-credited with the days upon which he was sick during his holiday.
These days may be taken as holiday at a later date, even if that means taking the holiday in the following leave year. The problem with this case was that the UK Working Time Regulations 1998 provide that statutory holiday cannot be carried forward into the next holiday year.
An English employment tribunal has now considered an almost identical issue in the case of Shah. Mr Shah had booked 4 weeks holiday from mid February to mid March 2009 (the holiday year ending on 31st March).
However, in January 2009, Mr Shah broke his ankle and was absent from work until mid April 2009. He asked to reclaim his holiday, which was rejected by his employer.
The employment tribunal held that the Working Time Regulations should be interpreted in accordance with the European Court of Justice's decision in Pereda to allow annual leave ruined by sickness to be re-credited and if necessary, carried over into the subsequent holiday year.
Therefore, the refusal by Mr Shah's employer to allow him to retake his holiday ruined by a broken ankle in a new leave year was a breach of the Regulations.
Whilst the tribunal's interpretation of Regulations is not binding on other tribunals, it seems probable that, in light of the incompatibility between the Working Time Regulations and the EU Working Time Directive, other tribunals may follow suit in that interpretation of the Working Time Regulations.
This means that not only public, but also private employers may have to consider changes to rules on holidays.
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