Should employees be able to claim back holiday if they're ill while on paid leave?


Date: 2 July 2012

I’ll remember my holiday to Goa in 2006 for many reasons. The warmth of the people and their beguiling culture; the awesome flora and fauna; TV legend Nicholas Parsons and wife, who were also staying at our hotel; riding an elephant for the first (and last) time; delicious cuisine; oh, and the worst case of ‘Delhi belly’ I’ve ever experienced.

People will tell you it’s inevitable when you visit India, no matter how careful you are about what you eat and drink. The food poisoning I suffered was horrendous (I’ll spare you the details) and meant I was laid low in my hotel room. Although I lost a few days of my two-week holiday, stoically I put it down to bad luck, inevitability and a dodgy curry I’d eaten from a beachside restaurant. At no point did I think my employer should be made to pick up the tab for my misfortune.

I’m sure employers throughout the country would have been surprised (if not dismayed) by a recent ruling by the Luxembourg-based European Court of Justice - binding on all EU member states, including the UK - which dictates that employees who become ill on holiday have the right to claim back days they’ve lost. The ruling is the result of an appeal made by a Spanish trade union against a department store group.

The court ruled that it would be “arbitrary and contrary to the purpose of entitlement to paid annual leave” not to grant employees holiday time in exchange for time they were ill. Under the EU Working Time Directive, full-time employees have the right to at least four weeks’ paid annual leave, even if it coincides with periods of sick leave.

The UK has opted out of the Working Time Directive’s setting of a 48-hour limit on the working week - but there is no exemption on sick pay and holiday. UK employers of all types and sizes should take note.

You don’t need an honours degree in workplace malingering to see that the ruling potentially leaves UK employers wide open to exploitation by dishonest employees. How can it be proved the employee was genuinely ill while on holiday? And even if they were ill, employers are once again faced with additional costs, disruption and staffing headaches that many will find more difficult to stomach than a dodgy beachside curry.

  • We want to read your views. Should employees be allowed to claim back days off if they’re ill while on holiday?

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