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At last - holiday or sick: which is it?

 22nd Jun 2012

Q:  If a worker is sick during annual leave can they take their annual leave at a later date?

A:  Yes.

In the recent case of ANGED v FASGA, the European Court of Justice decided that:

  1. the entitlement to paid annual leave is an important principle of European Union law
  2. annual leave and sick leave have different purposes
  3. the right to annual leave cannot be interpreted restrictively
  4. a worker who is on sick leave during scheduled annual leave has the right to take annual leave at a different time.

In short, a worker who is sick during their annual leave is entitled to reclaim their annual leave and use it at a later date, irrespective of whether the worker became sick before or during their annual leave.

This poses a potential headache for employers who find an employee comes back after two weeks in the sunny med with a lovely tan and declares that they had flu for the whole time and will be reclaiming their holiday.

While holiday is holiday and sickness absence is sickness absence, to discourage any abuse of the system, employers should update their policies to ensure that employees will only be paid statutory sick pay in these circumstances, rather than any enhanced contractual sick pay.


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