Holidays and sickness absence
[ch 4: page 136]The European Court of Justice (ECJ) has issued several key decisions about the effect of sickness on statutory holiday rights. These ECJ rulings only apply to the four weeks’ holiday under the Working Time Directive (WTD), not to the extra 1.6 weeks of holiday under UK law. Depending on the terms of the UK’s future relationship with the EU, UK courts will be free to disregard these rulings once the Brexit transition period ends (see Chapter 1).
Under EU law, a worker continues to build up statutory annual leave under the WTD while off sick. They can choose between taking paid holiday while off sick and saving it up to take when they return to work (HM Revenue and Customs v Stringer [2009] IRLR 677).
A worker cannot be forced to take holiday while off sick (Pereda v Madrid Movilidad SA [2009] IRLR 959). Taking paid holiday while off sick may be sensible if a worker has exhausted their contractual sick pay entitlement. Workers who want to take holiday when off sick should give notice of their planned holiday, following their employer’s normal holiday procedure.