I always find issues come along like buses and recently I’ve seen examples of employees who have been genuinely unwell during a period of time they had booked holiday, being denied the opportunity to reclaim that holiday time to use at a later stage.

Then I saw a judgment of the European Court of Justice in a polish case Sobczyszyn which has hammered home the point. Whilst the case doesn’t tell us anything we didn’t already know following a line of other cases in recent years (Stringer, Pereda and Anged) it is a useful reminder that whilst we remain a member of the EU, if an employee is unable to take holiday because they are unwell, they should be recorded as sick and then able to take their holiday at a different time.

This is the case whether leave has been scheduled or booked or not. In this case the employee being on sick leave meant she hasn’t had the opportunity to use her holiday by the end of the holiday year when she’d otherwise lost it. :The principle is clear: if sickness prevents annual leave, workers must be able to use annual leave at a later date. This is similar to the position on maternity leave where the annual leave has to be carried forward to the end of the leave period: holiday should be carried forward to the end of the sick leave period.

Clearly, unlike a maternity case, the employer may wish to check that the sickness is genuine so should provide for this eventuality in their sickness and holiday procedures. For example, the employer may want a GP’s fit note signing the employee as unfit for work in order to give them holiday back. This might weed out the employee who has broken their leg playing tennis from the one who has just had too much after tennis fun.

An employer who doesn’t allow an employee to reclaim their holidays risks a grievance from the employee as well as claims for unlawful deduction of wages in respect of the ‘lost’ holiday. An employer acting unreasonably could trigger an employee claiming a breach of their contractual rights to resign and claim constructive dismissal, for example, if a line manger is generally bullying and their attitude to sickness and holidays is just one example of that.

Of course, this law is all based on EU provisions and cases which don’t sit neatly alongside the UK drafting of the Working Time Regulations 1998. These sorts of things are prime candidates for change following Brexit but in the meantime employers do need to be careful.