Is it true that employees can now claim back holiday if they are sick while away?

Over the last 12 months a number of court cases have examined workers’ rights to annual leave and how this is affected by absence due to sickness in accordance with the European Working Time Regulations (1998).

In June 2009 the House of Lords, following the European Court of Justice, ruled in Stringer v HMRC that paid annual leave is a fundamental right and that being sick should not stop employees accruing holiday. Essentially this means that staff previously prevented from taking holiday because they were on long-term sick leave are now entitled to accrue and take paid annual leave.

However, the court also held that employers could not force workers to take annual leave while they are on long-term sick leave. This case was followed in September 2009 by the European case of Pereda v Madrid Movidad, where the ECJ ruled that if a worker falls ill during a pre-arranged period of annual leave then he or she should be able to designate an alternative period as leave. This has opened up the possibility that workers may be entitled to reclaim leave missed due to illness.

In February 2010 the first UK case to consider the Pereda ruling took place at the Leeds Employment Tribunal. The tribunal further held that it was possible to interpret the Working Time Requirements to not only permit a worker to rearrange holiday missed due to illness but also to carry over annual leave into the next year.

While the Confederation of British Industry has revealed that annual sickness rates in the UK are currently the lowest for 20 years, 180 million sick days were taken in 2009 and businesses should ensure that they are prepared and can budget for the impact of these decisions. Aside from preparing for the worst, another option for businesses is to try to combat sickness absence in the first place.

It is worthwhile approaching sickness absence like any other problem and start by collecting and analysing data – is sickness higher in a particular department or at a certain time of year? You could then perform a root cause analysis of sick leave examining factors that could contribute to highlevels of sickness such as problems with the working environment, work with no scope for personal autonomy, management that is not held accountable for attendence levels or no professional occupational health input.

The next step is to test whether any of the contributing factors do affect sickness absence and then identify actions that would have the greatest impact on rectifying these. Benchmarking against examples of best practice and performing gap analyses are also useful exercises.

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