News and Events

Down with Spanish Flu?...don't lose your holiday because of it

View profile for Howard Robson
  • Posted
  • Author

We all know that feeling, first day of the holiday and down with a hideous virus. Well, until recently an employee has had to pull up the duvet and hope for better luck next time a holiday comes around, unless their boss is sympathetic says Howard Robson, employment law partner.

A recent European Courtdecision in the Spanish case of ANGED v FASGA has clarified the law relating to the rights of employees and workers to take holiday time they have missed through sickness.

Howard advises, “The position is now clear: the individual can re-schedule their leave and even carry it over to the next year if they have to.  InGreat Britainan employee or worker is entitled to 5.6 weeks’ paid holiday annually which equates to 28 days leave including public holidays for a full time person. This entitlement is governed by the rather complex Working Time Regulations from 1998, yet despite their complexity they still don’t cover this situation.”

In an earlier Spanish case of Pereda v Madrid Movilidad SA theEuropean Court decided that, where an employee or worker’s prearranged legal minimum leave coincides with a period of sickness absence, European law requires that they have the option to designate an alternative period for the annual leave entitlement.  If necessary, the person is entitled to carry that period over to the next leave year and any employer preventing them doing so is acting illegally.

Howard warns, “A breach of that right might give rise to a claim for unfair dismissal and compensation. TheUKregulations are not specific about carrying over holiday entitlement but employment tribunals must interpretUKlaw to give effect to employee and workers EU rights.”

In Pereda, the worker concerned went off sick before a planned period of legal minimum annual leave but in the ANGED case theEuropean Courtlooked at the situation where a person falls ill during a period of leave and decided they must also be entitled to reschedule leave which was otherwise lost due to illness.

Howard explains, “The Court reached this decision on the basis that paid annual leave was originally adopted as EU law to address health and safety concerns over employees’ lengthy working hours. The purpose of paid annual leave is to enable a person to enjoy a period of relaxation and leisure; however sick leave is to enable a worker to recover from an illness that has made him or her unfit for work.”

Howard concludes, “These recent decisions may have an impact on both large and small employers especially if a person’s employment subsequently ends. On departure they are entitled to be paid all statutory accrued holiday pay in lieu. That could be a tidy sum, certainly more than a cheap ticket toMarbella!”

Some measures can be taken to minimise the impact of this decision. For further information contact Howard Robsonor the Warner Goodman Commercial team on 02380 717717.


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.