Background/Facts

This was an ECJ decision looking at the Working Time Directive.

The Claimant was a driver who suffered an accident at work before commencement of his annual leave. His accident meant that he would be injured for some of his holiday time. He therefore requested an additional period of leave, which was then refused by his employer. The ECJ held that his period of sickness should not have counted towards his holiday time.

Decision/Comments

The European Court has effectively said that there can be no exceptions to the entitlement to paid annual leave. It said that the purpose of leave is to enable a worker to rest and enjoy their leisure time and that by contrast sick leave is for a different purpose (i.e. to give the worker time to recover from being ill). It said therefore that a worker can decide not to take annual leave during a period of sickness and in those circumstances the employer should grant replacement holiday to make sure that the worker has his statutory entitlement to relaxation and leisure proposed under the Working Time Directive.

Some key questions, regarding whether or not (and the circumstances in which) holidays can be carried over into the next holiday year have yet to be decided for the private sector, accordingly many employers will have to wait and see for the full ramifications of this Judgment.

The decision however is clearly a further administrative nightmare for all employers and in particular for small employers.

The decision is more likely to be a problem for employers with generous sick pay schemes (relatively rare in the motor industry) and employees entitled to statutory sick pay are less likely in practice to raise the issue than those with full pay or more generous terms. The decision is however (in our view) a naive one by the ECJ given that it is open to abuse by rouge employees and difficult for employers to properly control, verification of sickness being a key problem.

No doubt this will be an issue that many of you will soon be encountering in practice.