The European
Court of Justice (ECJ) has ruled that employees do qualify for holiday pay
whilst on long term sickness absence. The holidays cannot be taken whilst an
employee remains off sick. The effect of this is that employees are effectively
storing the holidays in a ‘bank’. An employee off on long term sickness absence
will accrue up to 24 days holidays in a year (28 from 2009). An employee absent
for 11 months and then ready to return would be able to take virtually the
entire 12th month as holidays. If employment is terminated, then
again, the employee will be entitled to accrued sick pay for entire period of
absence.
The decision
is likely to enrage employers, especially as the Working Time Regulations were
introduced as a health and safety measure to ensure employees had proper paid
rest periods away from the workplace. Paid holidays were integral to that
concept. It is unclear how the ECJ reconciles this with the fact that the
employee would have had a lengthy period away from their workplace. Commentators
are already suggesting that employers may be tempted to terminate the contracts
of long term sick employees rather than have them accrue what could amount to a
substantial sum of money. Also employers may try to reduce periods of paid
sickness absence in order to pay for the holiday pay
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