Sick whilst on Holiday- European Court of Justice

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A recent decision in ANGED v FASGA & Ors, provides workers who fall ill during their annual leave the ability to take the corresponding annual leave at a later date. This case concerns the interpretation of article 7(1) of the Working Time Directive in which workers will be provided with annual leave totalling 4 weeks paid per year. The judgement stated that all employees are entitled to annual leave, which are regarded as an “important principle of the European Union social law from which there can be no derogations”. The right to receive paid annual is not to be interpreted restrictively. They held that the purpose of annual leave and sick leave are inherently different. “The purpose of entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure.” Where as the purpose of sick leave is to “recover from an illness that has caused him to be unfit for work”. This extends the ruling of Pereda v Madrid Movilldad SA where a worker is entitled to take annual leave at another time that does not coincide with sick leave if the worker “who is on sick leave during a period previously scheduled annual leave”. This judgement extended the case law that entitles annual leave which coincides with sick leave to be taken at a later point, irrespective of the timing of incapacity to work during the annual leave. This judgement is binding with in the UK and EU. This will be an unpopular ruling for employers as it may well be abused by employees. However, the Company may insist that an employee provides a medical certificate to confirm their incapacity during annual leave, rather than just taking their word for it.

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