Annual Leave May be Deferred in Cases of Sick Leave

The European Court of Justice (ECJ) has held in Pereda v Madrid Movilidad SA C-277/08 that where a worker's pre-arranged annual leave coincides with a period of sick leave, they are entitled to extra holiday to compensate after their recovery. This decision is at odds with the UK position.

Mr Pereda was due to take annual leave from 16 July to 14 August 2007. However, as a result of an accident on 3 July, he was on sick leave until 13 August. This meant that most of his annual leave coincided with his sick leave. His employer refused to grant Mr Pereda an alternative period of annual leave during his requested dates of 15 November to 15 December. Mr Pereda challenged this decision in the labour court in Madrid and the court made a preliminary reference to the ECJ.

The ECJ held that under the EC Working Time Directive, workers on sick leave during a period of scheduled annual leave must be given the right to take annual leave at a later date. This decision is directly effective on the public sector in the UK. However, workers in the private sector will not be able to benefit from it unless the Working Time Regulations 1998 (WTR) are amended. This is because in its current form, it is unlikely that the WTR can be interpreted as fully implementing the EC Working Time Directive on this controversial issue.