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Holiday ruined by sickness? Have another one on your employer!
...this is the message which many employees will take from the decision of Leeds Employment Tribunal in Shah v First West Yorkshire Limited which is believed to be the first Employment Tribunal decision to give effect to that of the European Court of Justice in Pereda v Madrid Movilidad SA.
In Shah, the Tribunal decided that an employee whose pre-arranged holiday coincided with a period of sick leave should be allowed to carry over that leave entitlement to the following holiday year.
In reaching its decision, the Tribunal interpreted the Working Time Regulations 1998 in line with the EC Working Time Directive by reading into regulation 13(9) (the provision which prevents the rolling over of statutory holiday) words permitting holiday to be rolled over to a subsequent holiday year if it coincided with sickness absence.
How can employers prevent abuse?
- by introducing automatic back to work interviews to monitor workers' claims to have been ill whilst on annual leave;
- by making payment of sick pay conditional on the worker complying fully with strict absence notification procedures;
- by including a contractual requirement for workers to produce medical evidence of sickness of less than 8 days' absence as a condition of paying for sick leave;
- by removing the right to contractual sick pay;
- by amending relevant employment policies to state that there can be no carry forward of any annual leave in excess of statutory holiday.
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