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 [2009] and Pereda
v Madrid Movilidad [2009], 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.
