Sarah Chilton: Illness is not always a valid reason for reclaiming leave

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The norovirus epidemic could provide the first big test of how bosses and their employees interpret a recent judgment by the European Court of Justice, which confirmed that workers can reschedule their annual leave should they fall ill on holiday.

The issue came to the fore again last year in a case brought by several Spanish trade unions. It was then referred to the European Court of Justice, which ruled in favour of the employees. This country is obliged to interpret UK law in line with the judgments of the court.

Larger organisations are likely to be conversant with the ruling, but small and medium-sized enterprises with limited human resources capacity may be unwittingly pressurised into acceding to requests for paid time off at a later date from workers struck down by the norovirus, (or any other sickness for that matter) while on leave over Christmas.

Therefore, all firms should be aware that the requirement to allow an employee’s leave to be rescheduled applies only to that covered by the European working time directive, which is four weeks in any one year. Employees who fell sick while on leave over Christmas cannot demand that their employers reschedule that leave to a future date if four weeks of their annual holiday entitlement had been used up.

It is common for company holiday years to end on 
31 December. In this scenario, many employees who fell sick while on a festive break are likely to have already used more than four weeks’ holiday, in which case entitlement to rescheduled paid leave will not be valid.

Employer commitments to paying rescheduled leave are also governed by the level of restrictions placed on someone with a holiday illness. Just because a sprained ankle or tummy bug spoils the enjoyment of someone’s holiday, that individual may not be automatically entitled to paid leave being rescheduled. The test will be whether the worker was unfit to do the job. So, employers can ask themselves, if they were at home rather than on holiday, would they still have been able to attend work?

Given the European judgment, this seems an opportune time for employers to review their absence management provisions, in contracts and staff handbooks.

• Sarah Chilton is deputy head of Murray Beith Employment