With a landmark European ruling allowing workers to claim back holidays lost due to sickness, employment law experts Hay & Kilner are urging employers to take the initiative to avoid being caught out.

Neil Dwyer, head of employment at Newcastle-based lawyers Hay & Kilner said: 
"This is a change to the belief that if an employee was sick during an agreed holiday that was their problem and the days were still counted as holiday. This ruling could cost businesses thousands in lost working hours, unless they prepare themselves to avoid abuse."

The ruling is effectively a new interpretation of the European Working Time Directive on workers' hours, which applies in Britain across the entire private and public sector.

The ruling by the European Court of Justice stated that workers on sick leave during what would otherwise have been their holiday, have the right to take annual leave "at a time other than originally scheduled, if necessary outside the corresponding reference period".  

This will allow employees who are ill during holiday leave to request it be ‘reallocated' to another time, including carrying their annual leave over into the next holiday year.  If employers fail to allow the revised holiday slots they risk an employment tribunal claim for breach of the Working Time Directive. 

Sarah Hall, a partner in Hay & Kilner's employment team added: 
"To avoid abuse by employees, companies need to take action now to update and respond in their employment contracts.  The principle applies no matter what is in your current contract, so you can't contract out of this, but a well drawn contract of employment can ease the burden of the ruling.

"It's a complex area where companies will need specialist legal advice.  It may change in future, but the new ruling doesn't specify how or when employees should notify their sickness, so employers can ask for convincing evidence to prove the sickness would have made them unfit for work.  That could include asking for a doctor's note, in addition to any usual self certification procedure. Also, any discretion to sick pay not SSP needs to be rethought and implemented"

Taking time to ensure employees understand the employer's policy now could pay off later.

For further information, please contact Neil Dwyer or Sarah Hall.