According to an article in the Times ….

Workers who are ill during their holidays can now claim the time back from their employers following a landmark ruling by the European Court of Justice.

The court said that employees had the right to ask for statutory leave to be “reallocated” when it was spoilt by sickness. Under the terms of the judgment, employees will be allowed to carry any annual leave marred by illness over into the next holiday year.

The ruling, made over a case in Spain, is in effect a new interpretation of the European Working Time Directive, which applies in Britain across the entire private and public sector.

The wording does not make clear at what stage the employee should contact their bosses to say they were sick or what proof of illness is necessary.

Employment lawyers warned that it could be costly for businesses and that it was open to abuse by unscrupulous employees seeking to extend their holiday entitlement by simply claiming to have had a cold or flu while they were on leave.

A worker could phone up while on holiday and say he or she was unwell — taking the day off sick, rather than counting it against the annual leave entitlement.

Currently, under the terms of statutory sick pay, workers can “self-certify” their illness for up to seven days by phoning their boss. For any longer they require a doctor’s note to confirm their continued illness, although authorities have been considering extending the period to a fortnight to allow for the recent outbreak of swine flu.

Katja Hall, of the CBI, said that European ruling was a concern. Ms Hall said: “Many firms already take a common sense and sympathetic approach. But allowing employees to reclassify their holiday as sick leave opens the door to abuse.”

The ruling came in a case heard at the EU court, in Luxembourg, regarding Francisco Pereda, who works for Madrid city council. Mr Pereda had been scheduled to take a month’s annual leave in the summer of 2007. He was injured shortly before the annual leave was to start and was refused a request to move his holiday by his employer. Judges decided that the employee should have been allowed to take his holiday at another date — and if necessary that it could be carried forward to the next holiday year.

Although the case related to someone who had booked his holiday and became unwell before it began, the judgment specifically said that if a “worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period.

Acknowledgement: The Times 15th September