Don’t let the European Court’s ruling leave you feeling sick

By Nik Askaroff

As if small businesses don’t have enough to worry about, they’ve now got to get to grips with a potential malingerers’ charter.

It follows a ruling by the Court of Justice of the European Union that any employee falling sick part-way through a period of pre-booked annual leave will be entitled to take the leave at a later date.

This takes it one step beyond a previous ruling which gives a worker the right to request and take their holiday at a later date if they are already on sick leave when their period of pre-booked annual leave is due to begin.

So how the heck is the new ruling meant to work? What is an employer meant to do when an employee returns from leave and immediately claims another holiday because he or she had become ill while they were away? After all, the court made it clear that the employee’s entitlement to take the ‘extra’ holiday is unaffected by the date on which the incapacity arose. The potential for abuse is obvious.

Those employers who don’t want to follow the self certification route during holidays will need to seriously tighten up their systems for monitoring and reporting sickness absence.

They might also consider laying down their own interpretation of what constitutes being unfit to work. The courts haven’t thus far come to a view on this, so introducing a company-wide concept of ‘unfit to work’ could help to manage employees’ expectations and limit the new ruling’s impact.  

There are, of course, a lot of companies who already provide employees with more annual leave than that stipulated in the Working Time Regulations. These companies might be entitled to argue that the ‘additional’ holiday will be considered to have been taken once it has been commenced, or even booked, even if illness then occurs.

As always, take advice on how to mitigate the effects of the court’s ruling before it gets round to biting you!

July 2012