I ONCE had a migraine which started just before we arrived at our French holiday home and lasted for two days.

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Of course it’s not great being ill on holiday but I just thought it was bad luck and recovered to enjoy the remaining 12 days. It did not occur to me to tell my employer when I returned and ask to take those two “lost” days again as holiday some other time.

Enter the European Court of Justice which has decided that a worker who is sick during paid annual leave can discount the days spent being ill and take the same amount of annual leave at a later date, regardless of when the sickness starts. So I could claim two days annual leave to take later to make up for my two days spent in bed with the curtains drawn and wet flannel on my forehead.

The Working Time Directive and the Charter of Fundamental Rights of the European Union state that the right to paid annual leave is an important principle of EU social law and there is no opting out.

The purpose of paid annual leave is to enable workers to rest and enjoy a period of relaxation and leisure, whereas the purpose of sick leave is to enable a worker to recover from an illness that has caused him to be unfit for work. That is the reasoning behind the European Court judgment.

The new decision means that, whether the worker falls in ill before annual leave or during it, he/she will be able to replace the leave and take it at a later date. We already knew that, if a worker was already ill when annual leave started, he could postpone annual leave; this case goes one step further and allows the leave if the illness starts during the paid leave. This new period of annual leave may be scheduled, if necessary, outside the normal holiday year

The decision actually raises some tricky questions. What happens if the worker goes to Greece for a week and goes down with gastroenteritis which lasts for five days? How will the employer verify this illness when he returns and asks to take his leave later on? Would it apply to someone who breaks her leg on a skiing holiday and comes home early? Very likely. Would it apply to my migraine? I think it would.

It is probably reasonable to have different rules for sickness during annual leave and the worker would surely have to notify the employer of the sickness while on leave. A medical certificate from a local doctor would also be necessary.

After all it is only fair that there are safeguards for the employer to protect against abuse. Otherwise, employers could end up paying for endless days spent hungover under a beach umbrella.

: : Sallie Davies is an employment lawyer with Blocks Solicitors

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