Employment Law Update (September 2009)
A malingerers' charter? European Court rules on sickness during
A recent case in the European Court of Justice (ECJ) has ruled
that workers who are sick during periods of holiday leave should be
allowed to take the holiday at a different time.
The ruling, which must be followed by courts in the United
Kingdom, has already been dubbed by some as a "malingerers'
charter". But is it really so serious and what can employers
do to limit the impact of the ruling?
What was the case about?
The ruling concerned holiday due under the Working Time
Directive, which is four weeks. The case that the court was
considering concerned an arrangement in which there was a four week
business closure over the summer and staff had to take holidays at
that time. The employee who brought the case was off sick due to an
accident at work for all but two days of the closure period. The
ECJ held that sick leave and holiday leave are different types of
leave and in this situation, the worker should be allowed to take
holiday at a different time.
How does it affect me?
Many businesses in the UK will already operate a system which
allows workers who are off sick to take holidays at a different
time, especially where the sickness is clearly genuine and
supported by a doctor's sick note.
However, some reports have said that the ruling could be used by
workers already on holiday to allege that they were sick during the
holiday, and ask to take more holidays at a different time – hence
the "malingerers' charter". There are several reasons why it
is not so straightforward for the worker:
- Except for the first week of sickness, all sickness absence
must be verified by a doctor's sick note to qualify for statutory
sick pay (SSP);
- If your business pays only statutory sick pay (SSP), then only
two days' SSP is actually payable during the first week of absence,
and this is at a weekly rate of £79.15;
- Businesses will normally operate an absence reporting procedure
that requires sick employees to phone and report sickness absence
on the first day of absence;
- Businesses which pay enhanced sick pay (above SSP levels) are
entitled to make the enhanced payment conditional – and can impose
conditions such as requiring a doctor's sick note;
- The ECJ ruling concerned the four weeks' minimum holidays due
under the Working Time Regulations (WTR). So, provided the
worker gets at least four weeks' holiday as well as any period
where he or she alleges "sickness", the ECJ ruling does not
- As long as the worker actually takes four weeks' holiday per
year, the European Court ruling does not apply.
- Although employees can take up to one week of sick leave
without a doctor's note, remember that this rule only applies for
Statutory Sick Pay (SSP), currently only £79.15 a week.
Additionally, under the SSP scheme, the first three working days of
sickness are unpaid.
- If you pay sick pay at an enhanced rate, over and above SSP
levels, you can insist on a private doctor's sick note as a
condition of payment.
Always ensure workers who want to claim they were sick while on
holiday notify you in accordance with your procedures – this
usually means on the morning of the first day of sickness.
Check your Absence Procedure for more information.