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More on sick leave and holidays

09 November 2009

The case in question was Pereda v Madrid Movilidad SA. Mr Pereda worked for the vehicle impounding department of Madrid City council.

 

The Case- Facts

  • He had booked annual leave but, before it was due to start, he was injured in an accident at work. His sickness absence then overlapped with his annual leave, meaning that he would be unable to enjoy his holiday. He asked if he could change his holiday dates, but the request was refused by his employer.
  • The court drew the distinction between statutory leave, which allows a worker to rest and relax, and sick leave, which allows a worker to recover from illness. They decided that a worker can request ‘replacement’ annual leave for any part of statutory annual leave during which they were sick.

Comments

The potential here for the unscrupulous is plain to see. A worker may appear fit and healthy on departing for their two weeks in the sun but later claim that a week of the holiday was ‘lost’ as a result of an upset stomach. In Mr Pereda’s case, the accident happened before his holiday began so it is likely that the employer had evidence that his sick leave was genuine.

So how do employers handle this? There was no guidance from the court on what evidence of illness will be expected. If a worker asks to treat any part of their holiday as sick leave, then it would be reasonable for them to comply with the company’s normal sickness absence reporting procedures and provide the usual certification. Employers may wish to insist on a doctor’s certificate in such cases to try to prevent abuse.

This judgment is a good illustration of the problems created when courts base  decisions on a logical premise but make no allowance for how they will work in practice for businesses.

If you need clear and pragmatic legal advice, we’re here to help so please get in touch.

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