What happens if you get sick while on annual leave?
This has been a thorny issue for some time. If you’re away from the workplace having a well earned rest whilst enjoying our glorious summer weather (ahem) and you get struck down by illness, can you (effectively) take your holiday again when better?
The answer is yes, after a recent preliminary ruling in the case of ANGED v FASGA by the European Court of Justice, concerning Article 7 (1) of Directive 2003/88/EC. Prior to this case it was already the law that you could take retake holiday if struck down by illness or an accident before going on leave. This case merely confirms that it does not matter when the employee becomes afflicted;
“It would be arbitrary and contrary to the purpose of entitlement to paid annual leave to grant workers the right to paid leave only if they are already unfit for work when the period of paid annual leave commences”
On the face of it, a sensible decision but one which will cause employers some angst. For example, if an employee has booked one (working) week off sick and becomes ill for those five days, there is no need for him/her to provide a doctor’s certificate to confirm the illness as genuine. The employer is going to have to trust the employee (and in the majority of cases that will be the right course of action), but there is scope for abuse by unscrupulous employees. Clearly, claiming to be unwell but posting pictures on Facebook that suggest the opposite will undermine the supposedly sick employee’s position somewhat.
Should the employee be allowed to retake their holiday if the illness is the mother of all hangovers following a binge-drinking session (brought about by another ignominious failure of an English sporting team perhaps?) Would anyone be silly enough to bring such a claim? You bet.