Rhiannon Jenkins: What should employers do when employees’ annual leave plans are interrupted by sickness?

Rhiannon Jenkins

With summer fast approaching, many employees will already have organised their holidays and annual leave. Often, however, the best laid plans go awry. How should employers deal with requests from employees to cancel their pre-booked annual leave or retake holidays that have been interrupted by sickness?

The leading case in this area, Pereda v Madrid Movilidad SA, at the European Court of Justice (ECJ), makes it clear that if an employee is incapacitated before a period of pre-arranged statutory holiday, they should have the right to reschedule that holiday for a later date. This case concerned an employee who had booked four weeks of annual leave before he had an accident at work and was signed off sick. His employer refused to let him change his holiday dates.

The ECJ found that the employee should be able to reschedule his annual leave for alternative dates. It also ruled that if the employee could not take the annual leave before the end of the leave year, he should be entitled to carry his leave over to the next holiday year, subject to an 18-month cut off from the year in which it was accrued.

The distinction between sick leave and annual leave was highlighted by the ECJ. Sick leave serves to allow an employee to recover from illness, whereas annual leave gives an employee time to rest and have a period of leisure.

The ECJ also subsequently confirmed in ANGED v FASGA C-78/11 that employees who fall sick during their annual leave should also be permitted to reschedule.

Employers will need to be diligent when dealing with requests to reschedule when an employee falls ill while on leave. They may choose to ask employees to report sickness in the usual way, even when on holiday, or require evidence on the employee’s return.

It is important that employers are consistent and transparent in the way they deal with these requests, while employees should understand and be informed about their rights when it comes to annual leave.

Rhiannon Jenkins is an associate in the employment team at Blake Morgan