A recent ruling from the European Court of Justice will allow employees who become sick while on holiday to claim the time back as sick leave later. The ruling is from a case brought by an employee of Madrid council who began his legal battle two years ago after being refused the right to reschedule his summer holiday because of an injury he had recently sustained.
The court in Luxembourg judged that under the EU's Working Time Directive, he should have been allowed to change his holiday dates and could not be forced "to take annual leave during a period of sick leave."
But the ruling has raised concerns that employers will be open to abuse by unscrupulous employees who see the judgement as a way to increase their holiday entitlement. According to the Chartered Institute of Personnel and Development (CIPD), the ruling risks forcing good employers to ditch relatively generous occupational sick pay schemes and opt for less generous Statutory Sick Pay schemes instead.
Ben Willmott, Senior Public Policy Adviser at the CIPD, said, "This is an extremely disturbing ruling that could be impossible for employers to manage. It may be logical for lawyers, but it is a ruling completely divorced from the real world.
"It is well-established that employers should take on some of the risk of employees being sick on work time, but it is basic common sense that employees should in turn be willing to accept the risk that they may be sick on their holidays. A holiday resort tummy bug or an ill-timed cold is an unfortunate fact of life. None of us wants one, but why should employers be forced to award employees extra holiday in compensation?
"Even more worrying is the risk that unscrupulous employees will now potentially be able to self-certify exaggerated or fabricated sickness while on leave, and not only gain extra holiday as a result but carry it over to the next year.
"The sad fact is that nonsensical rulings like this could force good employers to review their relatively generous occupational sick pay schemes, and consider opting for Statutory Sick Pay schemes instead. If ever there was a case of the law of unintended consequences, this could be it.
"In practical terms, following this ruling, employers should at the very least clarify their absence management policies so that employees understand they will need to phone their line manager daily if they are sick while on holiday, to confirm that they are still sick and not fit for work."
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A European Court ruling could force employers to choose less generous Statutory Sick Pay schemes. 
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