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Case law: workers’ paid holiday rights while on long-term sick leave
Case law: workers’ paid holiday rights while on long-term sick leave
July 15, 2009
Businesses must take note of a recent decision of the House of Lords, applying a European Court of Justice (ECJ) ruling on the holiday rights of workers on long-term sick leave.
In this long-running case, all the workers had been employed by HM Revenue & Customs (HMRC), and brought proceedings under the Working Time Regulations 1998 (WTR) for unfair dismissal. Earlier this year, the ECJ ruled that a worker is entitled to paid annual leave during the time that he has been on sick leave; where he remains unable to work until the end of his employment relationship, he is entitled to an allowance in lieu of the paid annual leave, to be paid at his normal rate of pay.
Giving its decision in this case, the House of Lords overturned the decision of the Court of Appeal from 2005, and ruled, in accordance with the ECJ ruling, that the workers were entitled to be paid for annual leave that accrued while they were on sick leave, on the basis that their claims for failure to pay under the WTR could be treated as a claim for unlawful deduction from wages under the Employment Rights Act 1996, which provides for a longer time-limit for bringing a claim. While this decision will inevitably increase costs for employers who find themselves in this situation, businesses must not be tempted to dismiss employees on long-term sick leave or they risk facing claims of unfair dismissal and, potentially, disability discrimination.
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Comments
While not entirely wrong, I would care to challenge the view made in the last paragraph of this post.
The (costly) mistakes many businesses do in these circumstances is focus their attention on dismissing the employee, and in doing so failing to focus on what they should be concentrating on – trying to identify, support, and tackle the underlying cause of the absence, in cooperation with the employee.
This should be done as part of a structured activity to assist the employee, albeit one that is also prepared for the worst-case-scenario of the steps failing, in which case it is perfectly reasonable to dismiss the employee, regardless of any disability (if the employee is unable to perform the duties, they are a legitimate selection for dismissal, regardless of disabilities or other matters covered by discrimination laws).
As long as the employer has taken reasonable steps to get an absent employee back to work, there is no reason not to dismiss where necessary; employees may try to bring a claim of unfair dismissal or disability discrimination, but this could be defended, as no employer is required to pay staff that can't do their job.
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