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Employee engagement is the key to managing new sick leave rules

As the holiday season approaches, the European Court of Justice’s (ECJ) recent decision that workers may interrupt a period of annual leave and take it at a later date in the event of illness is provoking some debate.

The ECJ held that the EU Working Time Directive permits a worker who is ill during a period of paid annual leave to convert their annual leave to sick leave, and take the annual leave at a later date.

The right applies regardless of when the period of sickness began.

The decision is based on the premise that the entitlement to paid annual leave is an important principal of EU law enshrined in the Charter of Fundamental Rights.

As annual leave and sick leave have different purposes, then, so the ECJ concluded, it would not be appropriate to expect workers to recover from illness during a period intended for rest, relaxation and leisure.

I can well imagine a request to convert annual leave to sick leave by an employee suffering from a tickly cough during the second day of a two week Mediterranean holiday may be career limiting, but what of deserving cases?

Businesses need to closely examine their annual leave and sick leave policies.

In my experience setting parameters and clarifying expectations is crucial and, handled well, the challenges thrown up by managing this difficult area can give organisations an opportunity to boost flagging employee engagement.

One of the first steps for employers will be to review employment contracts and annual leave/sick leave policies, to consider whether terms and conditions during periods of annual leave and sick leave and the current process for requesting and approving holiday is workable.

Employees should be required to inform their employer in the event of illness or injury in the usual way and indicate whether or not they will wish to convert a period of annual leave to sick leave.

Clarifying the circumstances and the nature of the illness or injury and its effect on the employee’s ability to work is important.

Temporary changes to duties may allow an employee to make a meaningful contribution despite an injury. The value of return to work interviews should not be underestimated. These interviews often help identify underlying problems that may cause intermittent absence from work.

While employees are generally entitled to receive their salaries during periods of annual leave, this is not always the case during periods of absence caused by ill-heath or injury.

Employees entitled to Statutory Sick Pay only during periods of absence caused by ill-health or injury will not be entitled to receive their normal salary in the event of converting annual leave to a period of sick leave.

In the event normal salary is paid to an employee otherwise entitled to SSP then employers will wish to ensure they are entitled to recoup the difference in payment.

Affected employees will be permitted to reschedule their annual leave.

The ECJ’s decision suggests annual leave may be carried over to the next holiday leave period if necessary.

If the contract or policy does not specify the procedure and timeframe for making holiday requests, the Working Time Regulations will apply.

The Regulations require an employee to give notice and allow an employer to refuse if proper notice is not given or if the needs of the business mean the request cannot be accommodated.

Whilst the Regulations provide a basic framework, frustration and ambiguity may be reduced by ensuring your policies and procedures are appropriately worded.

Jean-Pierre van Zyl, employment partner

Direct dial: 0843 224 7925


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