Wednesday, 5 June 2013
Sick leave while on vacation
Q: I took vacation leave, but became ill at the last week and was given two days sick leave which fell consecutive with the vacation. Now that I am back to work, my employer is claiming that the labour law does not allow sick leave to be taken consecutive with vacation and is cutting my salary. I need to know if such info is accurate.
A: Employees who become ill while on annual paid leave must be allowed to retake this time off. This was confirmed in Stringer v HMRC  and Pereda v Madrid Movilidad , which were decided by the European Court of Justice (ECJ) and accepted by the respective Supreme Courts of the UK and Spain.
The Stringer case concerned a number of employees. One of those was still employed but off sick. She wanted to be paid for holiday during her sick leave rather than lose the leave entitlement. The others had been dismissed and wanted to be paid in lieu of untaken leave from previous holiday years. In this case, the ECJ confirmed that workers on sick leave continue to accrue holiday rights.
In the case of Perada, the Spanish employer had a system of notifying employees of when they would be taking their leave in advance (like the traditional factory fortnight). This was to ensure numbers of workers off at any time did not exceed the employer’s acceptable levels. The rule was that leave could not be changed with less than 45 days’ notice.
According to the rota for 2007, Mr Pereda was due to take annual leave from 16 July to 14 August. However, following an accident on 3 July, he took sick leave until 13 August, with the result that all but two days of his annual leave coincided with his sick leave. Because of this, he asked the employer to grant him an alternative period of annual leave from 15 November to 15 December. The employer refused without giving reasons.
The ECJ decided that while the Directive allows workers to take holiday during sick leave, if they do not wish to do so and their prearranged holiday coincides with a period of sick leave, the holiday must be granted at a different time, even if this means carrying it over.
So, because this is current law in Europe and the UK, it will be followed at the Industrial Court in Trinidad and Tobago, if it gets there. Your employer cannot deduct wages for being sick on your holiday, unless he believes that you were being untruthful, and he must give you those entitlements back.