Last January, the ECJ has interpreted the right to paid annual leave enshrined by the Working Time Directive. In Stringer v HM Revenue and Customs, the Court has pointed out that it is for the Member States to lay down, in their domestic law, conditions for the exercise and implementation of the right to paid annual leave but without making the existence of such a right subject to preconditions. It has stressed that the entitlement to paid annual leave as conferred by Article 7 of the Working Time Directive may not be undermined by provisions of national law which exclude the existence of such right or provide for the loss of it if a worker is on sick leave for the whole leave year and/or beyond a carry-over period. According to the Court a worker does not lose his entitlement to paid annual leave if he has been unable to exercise it due to illness. Moreover, the ECJ has ruled that, on termination of the employment relationship, the employer must pay to a worker, who has been on sick leave for the whole or part of the leave year, an allowance in lieu of paid annual leave not taken.
However, this case was not the first and it won’t be the last. The working time directive is one of the most burdensome pieces of legislation. Nevertheless, every time the ECJ is asked to interpret the Directive, through the preliminary ruling procedure, further burdens are imposed on business.
In the UK, under the existing Working Time Regulations, annual leave may only be taken in the leave year in respect of which it is due. The ECJ´s rulings have thrown the UK law and practice on sick leave and annual leave into a mess. The Government will have to review the Working Time Regulations in the light of the ECJ's rulings.
There is another example that decisions on British worker’s rights are not made by the UK parliament or by UK’s courts. The ECJ, on 10 September, gave a preliminary ruling in Case C 277/08, Francisco Vicente Pereda v Madrid Movilidad SA, which also concerns the interpretation of Article 7(1) of the Working time Directive. The case concerns a worker, Vicente Pereda, who had been on sick leave during the period of annual leave allocated to him, from 16 July to 14 August 2007, in accordance with the undertaking’s planned staff leave schedule for 2007 and with the collective agreement for 2006 to 2009. He had an accident at work, on 3 July 2007, after he had booked his holiday but before he had started his leave period. He requested his employer to allocate to him a new period of paid annual leave for 2007. But such request was rejected. He, then, challenged that decision before the Juzgado de lo Social n° 23 de Madrid.
The Juzgado de lo Social asked the ECJ whether Article 7(1) of the Working time Directive must be interpreted as precluding national legislation or collective agreements which do not give to a worker the right to take his annual leave at a time other than that initially scheduled, if the period of leave allocated in the undertaking’s annual planning of leave coincides with the period where he was on sick leave.
The ECJ ruled that workers have the right to request for leave to be reallocated if it has been affected by sickness. According to the ECJ the worker has the right to take his annual leave during a period which does not coincide with the period of sick leave. It seems that the ruling not only concerns workers as Mr Pereda who got injured before his holidays but will also apply to workers who get sick during their annual leave.
The Court has stressed “where that 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 ECJ has ruled that such period may fall outside the reference period for the annual leave in question. Hence, workers would be allowed to take their annual leave over into the next holiday year.
The Court ruled therefore that Article 7(1) of the Working time Directive “must be interpreted as precluding national provisions or collective agreements which provide that a worker who is on sick leave during a period of annual leave scheduled in the annual leave planning schedule of the undertaking which employs him does not have the right, after his recovery, to take his annual leave at a time other than that originally scheduled, if necessary outside the corresponding reference period.”
In accordance to the ECJ´s rulings a worker must not be required to take annual leave on sick leave.
The judgments of the ECJ not only bind the national court to which it is addressed but also all national courts facing the same issue. This ruling entails therefore further costs and administrative burdensome for British business.
Under UK law employees can self certify themselves off work for up to seven days. Katja Hall, director of HR policy at the CBI has said that “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.” According to Ben Wilmott, senior public policy adviser at the Chartered Institute of Personnel and Development (CIPD) "The sad fact is that nonsensical rulings like this could force good employers to review their relatively generous occupational sick pay schemes, and consider opting for Statutory Sick Pay schemes instead."
