Imagine the situation…

After months of hard work you finally booked a few days off to enjoy the gorgeous (?) British summer weather. But, a day before taking your long awaited break you got really ill and had to spend all of your holiday in bed. Ouch!

The good news is that you are entitled to take sickness leave in place of holiday and to reschedule your holiday for another time.

The only difficulties arise when you are unable to reschedule time to take your leave entitlement that is due to you this year, in line with Working Time Regulations.

In 1998, rules relating to time spent at work were changed by the above mentioned document. These were created in order to implement the European Working Time Directive into British law. However, it appears that there are inconsistencies between domestic law and the EU Directive, especially concerning carrying over your unused leave into the next holiday year.

In order to tackle this inconsistency, the government has recently closed a ‘Consultation on Modern Practices’ which took place between May and August this year.

There are likely to be a number of legislative changes arising from this exercise which will bring UK employment law up to date with EU Working Time directive and European Court of Justice rules.

Proposals include amending the Working Time Regulations so that:

• where a worker falls sick during scheduled annual leave he/she will be able to reschedule the annual leave at a later date, including carrying it over if it is not possible to reschedule in the current eave year.
• employers can insist that unused leave should be taken in the current leave year if there is still an opportunity to do so.
• a worker’s entitlement on termination of employment to a payment in lieu of untaken leave will include payment in respect of any untaken carried-over leave.

It is unlikely that these changes will appear before 2012, but employers should begin to consider their position and make the required procedural amendments in order to avoid opening themselves up to claims of discrimination brought against them.

Q & A Law Solicitors suggest steps which businesses should take to mitigate their potential losses arising from being forced to make larger payments to workers:

1. Review your existing sickness policy – offer the employee little incentive to return to work or agree to take annual leave during sickness absence if appropriate.
   It may be that by reducing the generosity in an existing sickness policy, a business can off-set the potential cost of making increased leavers’ payments.
2. Be aware that there are likely to be amendments required to contracts and staff handbooks in order to accommodate the changes to sickness and holiday policies.
3. Effectively manage and monitor the length of sickness. There should be a proficient system in place whereby the length of sickness is monitored closely and appropriate steps taken to reduce the absence or end it completely.