Holiday Sick Leave Ruling is Open to Abuse
A legal ruling allowing staff to claim back holiday time lost to illness will expose employers to exploitation, business groups have warned.
The ruling made by the European Court of Justice (ECJ) may mean that workers taken ill on holiday could claim time back from employers as sick leave.
The judgement follows a case in which a Spanish council worker launched a legal action after being refused the right to alter holiday plans due to injury. The ECJ ruled 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”.
It was not specified when the worker would have to report his or her sickness to the employer, or at what point an illness could trigger the right to alter holidays.
The Confederation of British Industry (CBI) said that the ruling, which sets a precedent in case law, is open to abuse by untrustworthy employees who might see it as an easy way of increasing their holiday allowance.
“Many firms already take a common sense and sympathetic approach,” said CBI director of HR policy, Katja Hall. “But allowing employees to re-classify their holiday as sick leave opens the door to abuse. If this ruling is to become law, employers should be able to ask for a medical certificate.”
According to the Chartered Institute of Personnel and Development (CIPD), while existing UK laws are unlikely to change, the ruling has set a precedent, meaning that other employees who wanted to challenge their employer over holiday sick leave would have a good chance of winning the case.
“The ruling is completely divorced from the real world and employers will find the results impossible to manage,” said CIPD senior public policy adviser, Ben Wilmott. “A holiday resort tummy bug or an ill-timed cold is an unfortunate fact of life. None of us wants one, but why should employers be forced to award employees with extra holiday in compensation?
“Even more worrying is the risk that unscrupulous employees will now potentially be able to self-certify exaggerated or fabricated sickness while on leave, and not only gain extra holiday as a result but carry it over to the next year,” he added.