Holiday ruling shows that red tape is hard to cut

The European Court of Justice ruled yesterday that employees who fall ill while on annual leave can retake their leave at a later date. This ruling has been expected by employment lawyers for some time and the government is to make changes to the Working Time Regulations to both comply with the ruling and also deal with the difficult issue of how annual leave can be carried over by employees who are unable to take their entitlement due to sickness. The consequences of this ruling are however potentially extremely costly for employers and in particular small businesses.

A few years ago I went on a holiday to Egypt. We had a wonderful time enjoying the hot weather, spending time relaxing on the beach or by the pool, seeing the sights and going diving. The only slight downside to this trip away was that, to put it delicately, I had some tummy troubles for the first few days. I was still able to enjoy myself but I had to ensure that I was not too far away from the nearest WC.

Arguably the above scenario is not uncommon for many holidaymakers; however, these symptoms potentially could be classed as sickness and that if this happened again I could claim that I should be entitled to retake my annual leave at another time.

You could probably argue that my upset stomach was partially self inflicted in that I went to Egypt where the heat combined with the change in food/water meant that it was much more likely that I would pick up some form of bug. So in the future could employers decide that under their contracts of employment employees should be required to avoid certain destinations or types of holiday e.g. skiing, snowboarding or diving?

It also raises the question as to what happens if the employer only pays SSP and the employee declares that they they were off sick and want to re-take their annual leave at another time. Can the employer recoup the holiday monies that may have already been paid to the employee? Also how much time can elapse between the employee being ill while on leave before they tell their employer. Should they tell the employer on the day that they are sick as they are often required to do so under their contract of employment or can they wait until their return from leave? 

What is probably not in question is that this ruling means that a further burden will be placed on employers. The costs of complying with this obligation will probably outweigh the savings for employers that may have been made by the increasing of the length of service required to make a claim of unfair dismissal and the proposed changes contained within the Enterprise and Regulatory Reform Bill.

I am not aware of any ministers criticising the ruling and the resulting consequences for employers. There have been no promises to try and change the law at European level, probably because in the EU it is easier for laws to be created than for them to be repealed. What this ruling shows is that the government’s promise to reduce red tape for employers is perhaps one that they will struggle to keep.