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Workers Entitled to Recoup 'Lost' Annual Leave

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In the aftermath of yet another European Court of Justice ("ECJ") Decision on holiday entitlement and sick leave, employers may have to look again at their staff handbooks and absence policies.

In the matter of Pereda v Madrid Movilidad, the ECJ decided that a worker who falls ill during a period of scheduled annual leave has the right under the Working Time Directive to request to take the holiday "lost" through sickness at a different time. Although employers are entitled to require that the worker take such rescheduled leave at a time that suits business needs, the ECJ decided that business needs cannot have the effect of denying the worker the right or the opportunity to take rescheduled leave in the relevant holiday year, so rules prohibiting carrying- over holiday from one leave year to the next must be varied to give effect to this decision.

The Working Time Regulations 1998 specifically prohibit the carrying- over of annual leave between leave years, so it looks like the Government will have to consider amending the Working Time Regulations to give effect to this ruling.

Whilst it would appear that staff handbooks and policies will need to be amended to give effect to situations where sickness interferes with employees' scheduled holiday, it may be advisable to adopt a watching brief to see what ,if any action the government intends to take. Any employees falling within these circumstances should be dealt with on a case by case basis while we wait for more guidance.

Inevitably, the ECJ decision deals with the theory rather than the practice and does not identify what, if any, evidence would be required of an employee claiming back "lost" annual leave. It is likely that employer's usual absence reporting procedures will apply, but if this amounts to little more than the self-certification of illness, then employers should look to "beef up" their procedures to limit the possibility of employees abusing these rights.

Paul Grindley can be contacted on (0113) 399 3424 or paulgrindley@keeblehawson.co.uk.

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