Claim back holidays lost to sickness

[POSTMAN]

http://www.telegraph.co.uk/news/worldne ... stice.html" onclick="window.open(this.href);return false;


Claim back holidays lost to sickness, says European Court of Justice
Workers who fall ill during their holidays could now claim the time back from their employers following a landmark European Court of Justice judgment that lawyers warned was open to abuse.

The court ruled that employees had the right to ask for statutory leave to be "reallocated" when it was spoilt by sickness.

Under the terms of the judgement, employees would even be allowed to carry any annual leave ruined by illness over into the next holiday year.


The ruling is effectively a new interpretation of the European Working Time Directive on workers' hours, which applies in Britain across the entire private and public sector.

Leading employment lawyers warned it would be costly for businesses and that it left "the door open for abuse" by unscrupulous employees seeking to bolster their holiday entitlement by simply claiming to have a cold or flu while on leave.

A worker could phone up while on holiday and report in sick in the normal way - taking the day off sick, rather than counting it against their annual leave entitlement.

The decision has its origins in a separate ruling on a case brought by a group of British workers earlier this year which said that workers were entitled to accrue holiday during sick leave. However, that had left open the question of what would happen if sickness coincided with scheduled leave.

The new ruling, over a case in Spain, is likely to mean that employers will end up paying for both their employees' sickness absence and a rescheduled holiday.

Owen Warnock, a partner at the law firm Eversheds, said: "Many employers take the view that if an employee is sick while on holiday, that is just bad luck for them.

"The European court has now said that this is not allowed by the working time directive.

"The danger of abuse is clear: an employee could increase his or her holiday entitlement by ensuring that in most years they alleged they were sick while on holiday. It may only be the occasional ‘bad penny’ who does this, but the resentment that it would create with colleagues should not be underestimated."

Katja Hall, Director of HR Policy at the CBI, said the ruling was a "concern".

"Many firms already take a common sense and sympathetic approach. But allowing employees to re-classify their holiday as sick leave opens the door to abuse."

Naomi Feinstein, of law-firm Lovells, added that the ruling was "unexpected" and raised serious concerns for employers.

"This could effectively be interpreted as meaning that you are only sick on your employer’s time, and not your own," she said.

The way in which holidaying workers will have to prove their sickness will depend upon individual employers and their absence policies.

Currently, under the terms of statutory sick pay, workers can "self-certify" their illness for up to seven days by calling in sick. For any longer they require a doctor’s note to confirm their continued illness, although authorities have been considering extending the period to a fortnight to allow for the recent outbreak of swine-flu.

The wording of the ruling does not make it clear at what stage the employee should contact their bosses, but lawyers warned there was no reason in principle why an employee whose holiday had already started could not claim the right to reschedule their leave.

"The proof of sickness is for the employer to decide – it could be that they take the employee’s word for it or they could request a doctor’s note," said Miss Feinstein.

Mr Warnock added: "Until the European or UK courts say otherwise, our view is that employers are entitled to require workers to produce convincing evidence of their illness while on holiday and that it would have rendered them unfit for work before allowing workers to ‘reallocate’ holidays."

The ruling came in a Spanish case heard at the European Court of Justice regarding the Working Time Directive, to which Britain is signed up.

Francisco Pereda, who works for a vehicle impounding department at Madrid city council, was scheduled to take a month’s annual leave in the summer of 2007.

He was injured shortly before the annual leave was due to start and was refused a request to move his holiday by his employer, Madrid Movilidad.

Judges decided that the employee should have been allowed to take his holiday at another date – and if necessary that it could be carried forward to the next holiday year.

Although the case related to someone who had booked his holiday and then become ill beforehand, the judgment specifically says 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".

The latest ruing comes three months after the House of Lords ruled that workers could accrue holiday entitlement while on long-term sick leave.

The so–called Stringer case brought forward by a group of former HMRC staff in Britian found that a worker could carry leave forward, even into the next year, if he or she was "unable to take leave through no fault of his own".

Lawyers said that the latest judgment appeared to flout the current rules of the working time directive, which require employees to use all holiday within a year or lose it.

Employers will be particularly concerned about the effect of this decision for employees on long term sick leave, according to Lovells.

"Depending on how the decision is interpreted, this may imply that employees on long term sick leave should be able to elect to carry leave over from one year to another. This would obviously give rise to substantial costs on the employee's return to work or the termination of employment," a spokesman said.

Long-term sickness is believed to be the most damaging area of absence for businesses.

It cost the economy £5.3 billion in 2007, according to the CBI, and is thought to be rising.

Levels of sick pay came under scrutiny recently when figures revealed that there was an average of 6.4 sickness absence days a year in the private sector, compared to 9.7 days lost in the public sector.

The recent Boorman report on sickness absence levels in the NHS disclosed that more than 10 million working days are lost to staff sickness in the NHS at a cost of £1.7 billion.

Dr Boorman estimates that if NHS absence were to be reduced to the same level found in the private sector, almost 15,000 additional staff would be available for work every day.

[POSTMAN]

Interesting.

Oh,and still a crap paper btw

[pickaname]

Doesnt really make any difference to me. 14 days or 4 absences is still 14 day or 4 absences whilst on leave or not.

If the Daily Mail are watching: I BLAG THE SYSTEM!!!

[Donk]

"The new ruling, over a case in Spain, is likely to mean that employers will end up paying for both their employees' sickness absence and a rescheduled holiday."

So, will RM see this as another Spanish Practice?



Oh, and Hello everybody. Just realised I hadn't posted before!

[shelanda]

Been doing this at my office for as long as I remember!!!

[apple]

isn't eversheds the law firm RM use when going to a industrial tribunal?

[oggie]

will this mean that we will be able to claim back days counted over the weekends as sick days as well as back hols when sick, as when you are on sick leave over a weekend or bank holiday royal mail still count this.

[Tman]

will this mean that we will be able to claim back days counted over the weekends as sick days as well as back hols when sick, as when you are on sick leave over a weekend or bank holiday royal mail still count this.

What are you saying then? If you're sick Saturday and Sunday when you're not due to work (but RM have counted them in because you're off Friday and the following Monday) RM should credit two days to your A/L entitlement?

[andy2007]

If we can claim AL back, which we've lost because we're sick. Then why shouldn't we be able to claim the weekends back, if they're counted towards our sick record?

Although TBH, I think it would be much fairer. If they only counted work days, towards our sick leave. So for example (assuming 5 day week Mon - Fri): if you were off Thurdsay to Monday. Just count it as 3 days, instead of 5. After all: You weren't meant to be in on Saturday or Sunday.

It'd certainly be a lot less hassle, than people trying to claim weekends back, wouldn't it?

[oggie]

will this mean that we will be able to claim back days counted over the weekends as sick days as well as back hols when sick, as when you are on sick leave over a weekend or bank holiday royal mail still count this.

What are you saying then? If you're sick Saturday and Sunday when you're not due to work (but RM have counted them in because you're off Friday and the following Monday) RM should credit two days to your A/L entitlement?

royal mail cannot have it both ways, example, say you are sick for 14 days which includes 2 weekends, but you duty is monday to friday, royal mail will state you are sick for 14 days, now i don't know if they claim any money back from the state (ssp) but all i am saying is that when working out your sick record it should only show the number of days lost to sickness when you would have attended not on days when you would have not.

[wranglered]

isn't eversheds the law firm RM use when going to a industrial tribunal?

most certainly is....had any dealings with them? I have had/am having a few......

[brothermagrew]

Been swotting up:

Francisco Vicente Pereda -v- Madrid Movilidad SA

http://www.bailii.org/eu/cases/EUECJ/2009/C27708.html" onclick="window.open(this.href);return false;

The ruling stems from a case brought by a Spaniard working for Madrid council.

The employee, Francisco Pereda, began his legal battle two years ago against Madrid Movilidad SA, after being refused the right to reschedule his summer holiday because of an injury he had recently suffered.

The court in Luxembourg decided that under the EU's Working Time Directive, he should have been allowed to change his holiday dates and could not be forced "to take annual leave during a period of sick leave".

Abuse fears

Lawyers examining the ruling said it could make it possible for workers already on holiday to phone in as unwell - in effect, giving them extra time off. The ruling is binding on the 27 EU member states.

Katja Hall of the Confederation of British Industry (CBI) said: "Many firms already take a common-sense and sympathetic approach. But allowing employees to reclassify 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."

Article Seven of the EU's Working Time Directive guarantees every worker paid annual leave of at least four weeks.

Interpreting the directive, the court said that, in cases where annual leave coincides with sick leave, Article Seven overrides any national or collective agreement that prevents a worker rescheduling his annual leave.

The court ruling did not specify when the worker would have to report his or her sickness to the employer. Nor did it say at what time an illness could trigger the right to alter holidays.

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