Periods of sick leave and annual leave coinciding

Will and Holly were both sales consultants employed by an agency. In April, they went on holiday together to Goa. Unfortunately, 4 days into their 2 week holiday they both caught a nasty tummy bug and were laid up for the remaining 9 days of the holiday.

Upon their return they claimed they were entitled to a replacement 9 days’ additional paid holiday to compensate for the period they were ill. Are they crazy? Surely this is courting the employer’s wrath?

Under a recent ECJ decision, the employer agency may be forced to give them the additional 9 days. Bizarre or what?

The conclusion that Will and Holly could claim additional holiday follows a recent European Court of Justice (highest Court in Europe) decision in which a lorry driver who had become sick just before his holiday was due to start, was entitled to a replacement holiday. Since holiday is meant to be a time of fun and relaxation in line with health and safety principles, the driver would have been precluded from letting his hair down because of his illness. Therefore he was entitled to a replacement holiday period.

The possible ramifications of this decision have not yet sunk in. Because holidays are an entitlement under the Working Time Regulations (WTR) all workers whether employed or not, could be entitled to replacement holidays if sick. Refusing such a claim could lead straight to the employment tribunal. Where will it end?

On the principle that prevention is better than cure, it is best to ensure that your contracts, whether for your regular staff or for your agency workers, contain suitably thought through protective provisions. For more information and advice CALL US ON 01273 236236.