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Staff can get back holidays if they fall sick

27 July 2012

Workers who fall ill during their holidays are entitled to reclaim the time off at a later date, following a ruling at the end of June from the European Court of Justice (ECJ). This is not good news for employers, says one of our employment lawyers.

In the case, which was brought by a Spanish trade union against a group of department stores, the ECJ said that an employee can effectively cancel a period of booked holiday leave and retake it at a later date if he becomes unwell either before or during the time off.

The ECJ went to great lengths to emphasise that the concept of paid annual leave was a principle at the very core of EU social law and employers cannot escape their obligations.

The case follows that of Pereda v Madrid Movilidad SA). As in that case, the new ruling re-states the principle that if paid leave cannot be taken because of ill health, a worker must be allowed to carry the leave forward to the next holiday year.

This case represents the head-on collision between the EU and ECJ and the British government’s view that many current employment practices are economically restrictive. The ruling is effectively saying ‘don’t even think about taking us on’.

In an effort to appease business and industry, the government has given the impression that they will attempt to resist the effect of this judgment but the reality is that it is not within their power to do so.

As always, if you need commercial and pragmatic employment law advice, we’re here to help so please get in touch.

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Matthew Clayton MA LLM (Cantab), CIPP/E
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Mathew Clayton
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