A worker who is sick during statutory holiday should be allowed under EU law to take the holiday at a later date, if necessary in the following holiday year, according to the ECJ. On its face UK law does not comply with this ruling. Public sector employers will need to comply with the EU position immediately; private sector employers may decide to wait until UK law is amended before changing their practice.

Under UK law an employee can be sick and on holiday at the same time (see Stringer). However, the UK regulations expressly allow employers to require employees to take leave at specific times, make no provision for holiday to be rescheduled if the employee is sick, and do not allow entitlement to be carried over a holiday year end.

The ECJ has now ruled that EU law requires employees to be allowed to choose to take holiday at a later date if they happen to be ill during a period of scheduled annual leave, even if this means carrying over the holiday into a new holiday year. Although the case concerned an employee who fell sick before rostered holiday, the reasoning applies equally to an employee falling sick during holiday.

It would also apply to those on long-term sick leave, allowing them to elect not to take holiday while sick but instead to continue carrying over their entitlement until they return to work or are paid in lieu on termination.

Public sector employers will be bound by the ruling immediately as their workers can enforce EU rights directly. The ruling will only affect private sector employers now if tribunals can be persuaded to read (extensive) wording into the UK regulations so as to construe them in line with the ECJ ruling; this seems unlikely but not inconceivable. Many private employers may decide to take this risk and leave their practice unchanged until such time as the UK regulations are amended.

The decision has been criticised as opening the door to abuse by unscrupulous employees. Certainly it provides a prompt to employers to review what medical evidence they require for short-term sickness and ensure they have a robust procedure for identifying possible malingerers. (Pereda v Madrid Movilidad SA, ECJ)