The European Court of Justice on 15 September 2009 issued judgment in Pereda, a Spanish case concerning an employee?s ability to postpone vacation when sick or injured.

Background

Under the Working Time Directive, European Union Member states are required to implement laws providing for a 4 week vacation entitlement (pro-rata for part time workers). The minimum vacation entitlement in England for a full-time five day a week worker is now 28 days, including public holidays.

Mr. Pereda, a Spanish national working in Madrid, had booked a month's vacation for August. Shortly before his vacation he was injured at work and signed off sick for a period of nearly a month. He therefore asked his employer to cancel the holiday; and confirm that he would go on paid sick leave taking his holiday later. The employer refused and Mr. Pereda sought a ruling in the European Court (“ECJ”) as to whether if an employee was ill or injured at a time which was otherwise allocated as holiday he was entitled to reallocate the time as sick leave and the employer was obliged to agree to this.

Hard cases make bad law. Had Mr. Pereda's employer agreed to what many would think of as a perfectly legitimate request, we would not now have a ruling from the ECJ which states that employees who become ill during their holiday are entitled to notify their employer that (1) holiday is to be treated as sick leave, and (2) that they should be able if necessary to carry holiday to the next year.

Of course, many employers do in fact treat employees who become ill or injured before or while on holiday sympathetically and most employers with an employee in Mr. Pereda's position probably would have agreed to allow him to cancel his holiday. In the normal course, most employees who become ill perhaps with a cold or some other minor illness during a vacation will not seek to change holiday to sick leave.

In the UK employees in respect of the first 7 days of absence „self certify? the illness although in limited circumstances a doctor will provide a sickness certificate for short periods of absence.

An employee who is on holiday may on his or her return to work in theory following Pereda certify to the employer that he or she was ill for anything up to 7 days of that absence without producing any form of doctor?s certificate.

What should employers do now?

Our view is that employers should treat issues of this nature in the same way they treat employees who are consistently off sick for one or two day periods, (e.g. around weekends). That is, they should monitor absences, and where employees regularly report sick while on holiday and "reclaim" holiday consider further investigation and personnel management (as with other patterns of absence), e.g. an employer may have to make enquiries as to whether there is a genuine illness and/or to manage absences as a performance/conduct issue.

Where an employer believes that employees may abuse the system it should make it clear that if employees do claim days off as sick when on holiday then this will count towards any sick pay entitlement; and, where employees are identified as habitually and without good reason claiming sick days while on holiday, provide that on days when the employee is claiming to be sick while on holiday he or she will not be paid holiday pay but will be paid at the statutory sick pay rate