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Falling ill while on holiday
[ch 4: pages 120-121]A worker who falls ill either while on holiday or before starting a pre-booked holiday is entitled to reschedule that leave, to take at a later date, if necessary during the next leave year. An employer can refuse particular holiday dates, but must allow the leave to be carried forward into the next holiday year if it cannot accommodate the worker’s request. This was established in the following case:
A work accident meant that Mr Pereda was ill for all but two days of his one month long summer holiday. When his employer refused to let him re-book his holiday to take later in the year, he brought a successful claim.
The ECJ decided that Pereda must be allowed to carry his holiday forward to a time when he was fit enough to use it. This is because the purpose of sick leave (recovering from being ill) is different from that of annual holiday (enjoying rest).
The case also confirms that although a worker can opt to take paid annual leave while off sick, they cannot be forced to do this.
Pereda v Madrid Movilidad SA [2009] IRLR 959
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?isOldUri=true&uri=CELEX:62008CJ0277
The coalition government’s consultation Modern Workplaces includes proposals to amend the Working Time Regulations in response to the Pereda judgment.
An employee who falls ill when on holiday is entitled to their contractual sick pay. Many employers have changed their contract terms in response to the Pereda judgment, to limit the sick pay due when a worker falls ill when on holiday, for example by insisting on a GP certificate before paying contractual sick pay or by replacing a right to contractual sick pay with a right to Statutory Sick Pay only.
The SSP rules under the Social Security Contributions and Benefits Act 1992 say that sickness during a holiday (unless the employee falls ill outside the European Union) qualifies for SSP as long as the employee has a medical certificate. See page 207 for more information about qualifying for SSP.