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Sick Leave

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Sick of Sick Leave?

Despite government efforts to encourage small business to take on staff, European case law developments seem to be going in the other direction.


Interpreting the Working Time Directive, the Court of Justice of the European Union in Anged v FASGA has held that if a worker is sick during annual leave they can take annual leave at a later date instead.


This applies regardless of when the period of sickness began. So if an employee goes on holiday and then becomes sick, in theory he can claim back the days holiday during which he was sick. This confirms an earlier ECJ decision in Pereda v Madrid Movilidad.


UK cases do not appear to exactly address this point. In June 2011 it was held that a worker unable to take annual leave due to sickness could accrue that leave and take it later (NHS Leeds v Larner [2011] EAT). In November 2011 it was held that an employee is entitled to accrue annual leave even when off sick. However the employee must apply to take that leave in the year in which it accrues (Fraser v SW London St George’s Mental Health Trust. EAT 2011).


It remains to be seen how closely the UK Courts will follow the Anged and Pereda decisions. However in the meantime it may be worth amending your sickness absence policy to provide that any sickness during a period of scheduled annual leave must be supported by a doctors certificate at the time (rather than following a return to the UK).


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