Sick Or On Holiday?

They can take the days they are ill as sick leave and take the annual leave later.

That is the decision of the European Court of Justice in Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA), Federaci?n de Trabajadores Independientes de Comercio (Fetico), Federaci?n Estatal de Trabajadores de Comercio, Hostelería, Turismo y Juego de UGT, Federaci?n del Comercio, Hostelería y Turismo de CC.OO. handed down on 21 June 2012 (ANGED v. FASGA for short).

This is probably (hopefully?) not that much of a surprise since the ECJ had already previously decided that the rules providing for time off while sick and the rules providing for paid annual leave are there for different purposes. If you are sick, you can’t get the benefit that annual leave is supposed to supply.

The only thing this decision clarifies is that this rule applies regardless of whether you were off sick before a pre-booked period of annual leave or become sick while already on leave. That is an obvious and necessary result of the previous decisions.

The real question is what effect is this actually going to have in practice. Many employers already allowed staff to notify them that they were ill while on leave and swap the respective entitlements around. Quite how many people actually made use of that is not clear. You still have to go through the usual requirements to qualify for sick pay and of course you still use up your sick pay entitlement, you can now just preserve your holiday entitlement.

How will this work given the fact that an employee who is unable to take their leave during the current leave year due to illness is entitled to carry over the leave into the next year?

Another potential area for concern is what might happen if the ECJ decides that the current system provides too much in the way of barriers to staff taking the days they are sick while on leave as sick pay. Given the reasoning behind the decision, it is arguably not open to the employee to decide not to take sick leave if they are sick. Given a suitable case the ECJ might decide that the national law system is incompatible with the EU obligations and needs to be revised.

I think that is unlikely but what is perhaps more likely is that an Employment Tribunal might feel that it needs to interpret UK law in accordance with the EU obligations and hold that a company which provided a hostile atmosphere towards people taking sick leave (whether generally or while ‘on leave’) or perhaps simply did not take appropriate steps to ensure that people took sick leave when they were ill was in breach of UK law in some way, possibly leading to a finding of unfair dismissal, etc.
Clearly the message for employers is to be clear to ensure that all employees can and do take their leave in the current leave year and that employees are aware of their rights regarding sick pay, etc. and that the employer can demonstrate that they encourage staff to take sick leave when they are sick rather than requiring ‘presentee-ism’.

While that may sound like commercial suicide to some, from a purely commercial note it is worth pointing out that some studies suggest that the cost of staff coming to work while they should really be off sick is significantly higher than the cost of staff sickness absence (see for example Cooper & Dewe, Occupational Medicine 2008;58:522–524).

For advice on how to deal with staff leave and sickness absence, contact or Ian Pinder or call us on 01227 813400.