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Sun 8th November 2009
Employers, Are you up to date with your sickness policies?

You may not be aware, but there have been a number of recent cases heard before the European Court of Justice ("ECJ") that will, and may in the future, impact on the rights of employees under the Working Time Regulations ("WTR"), which entitles workers in Great Britain to certain entitlements relating to holidays, sick leave, and payments.

One recent change was considered in the case of Stringer and others v HM Revenue & Customs and Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] where the ECJ confirmed that employees who are on long term sick leave have the right to accrue holiday entitlement during this period under the WTR.

The consequence of this case is that employees who are on long term sick leave have the right, including when their sickness spans one holiday year to the next, to designate periods as statutory holiday and receive payment for their accrued but untaken leave or to potentially carry that leave over to the next holiday year to use in a period when they are able to take the leave.

In the most recent case of Pereda v Madrid Movilidad SA C-277/08 the ECJ decided that under the EC Working Time Directive where a worker has pre-arranged leave and falls ill during that period, they must have the option to designate alternative leave even if it falls within another holiday year. The slight difference in this case is that it does not impact fully on the WTR which is the British statute which enforces the EC Working Time Directive ("Directive"). All public bodies must comply with the ruling as they are directly affected by the Directive, however private companies are somewhat in a state of limbo. The current drafting of the WTR does not fully reflect the wording of the Directive which the ECJ considered and it is arguable that the ruling cannot be imposed on the WTR. This however may lead to various employment claims and it is advisable to take the cautious approach and treat the decision as applicable and take steps to prevent employee abuse.

Employers should look to update their sick leave policies to ensure that there are clear procedures for reporting illness on pre-arranged holidays in order to qualify for either SSP or contractual sick pay. Also sick leave policies should be amended so that the rights the employee has to reschedule their leave are defined and the procedures set out for employees on long term sick to request payment for accrued but untaken holiday.

If you require further details on handling sickness issues, updating your existing policies and handbook or any other employment matters please contact a member of the Employment Team on 01234 400000 or email Asad Rana: arana@pwhmllp.com, Kiall Bagnell:  kbagnell@pwhmllp.com or Claire Yates: cyates@pwhmllp.com