Reclassifying holiday as sick leave

16th September 2009

On 10 September 2009, the European Court of Justice (“ECJ”) delivered its judgment in the case of Francisco Vicente Pereda v Madrid Movilidad SA and held that where an employee does not wish to take annual leave during a period of sick leave, he or she must be permitted to take the annual leave at a different time. This means that employees who are taken ill during a scheduled holiday have a choice: they can either take their annual leave as planned, or insist on postponing their annual leave and instead take sick leave.

The ruling is clearly open to abuse by unscrupulous employees, who might attempt to increase their holiday entitlement by dishonestly claiming to be sick during a scheduled period of annual leave. Unfortunately the ECJ did not comment on the evidence that employees will be required to produce before they are permitted to reclassify their leave. Therefore until some guidance is provided, employers would be well-advised to require any employee that seeks to reclassify holiday as sick leave to produce a medical certificate confirming that he or she was unfit for work on the days in question.