It has always been Employment Practice & Laws practice to advise prompt action in dealing with staff on prolonged sickness absence, whilst making appropriate allowance in situations where there is a genuine disability.

In recent weeks however two Employment Practice & Law cases have made it even more desirable (from the employer’s viewpoint) to act swiftly. Until now, some employers have taken the stance that they could leave a sick employee “on the books” indefinitely because they did not cost anything. This came from the provisions of the Working Time Regulations which prevented holiday accrued, but not used at the end of the holiday year from being carried forward. That is no longer the case however.

The first Employment Practice & Law case to have changed the situation is Stringer & Others v HM Revenue & Customs – a case which was referred to the European Court of Justice (ECJ).

THE ECJ in dealing with Stringer and a German case it was considering at the same time has held “that the right to paid annual leave continues to accrue during sick leave and, on termination of the employment relationship, a worker who has been on sick leave and unable to take paid annual leave is entitled to a payment in lieu.”

The Sting in the Tail is that workers on long term sick leave will be able to bring a claim for lost holiday pay under the provisions of the Employment Rights Act 1996
rather than under the Working Time Regulations – thus allowing them to claim outstanding holiday pay as a breach of contract and to go back up to six years.

The second case, again from the ECJ, is Pereda v Madrid Movilidad SA. The ECJ ruled that “workers who fall sick while on holiday should be allowed to reschedule their leave, even if it meant within the next leave year.”

The significance of the second Employment Practice & Law case is that it potentially opens the door for those who might try to abuse the system. It is easy to envisage a situation in which a long foreign holiday is booked and the employee subsequently claims that he/she was ill for a lengthy part of the holiday – and wants to take again that part of the holiday during which he/she was sick.

In the face of these developments Employment Practice & Law will be looking at revision of sickness notification procedures as case law develops further.