| SICK days that occur when employees are on annual leave do not have to count as part of their holiday, according to a recent European Court of Justice (ECJ) verdict.
A judge found that a worker who falls ill during a period of holiday is entitled to have those days added back to their annual leave entitlement to enjoy later.
The case which set the precedent was between various Spanish unions and the National Association of Large Distribution Companies (ANGED).
Unions took the issue to the Spanish courts, mainly referring to employees working in factories or warehouses, but ANGED objected.
They said the only exceptions according to Spanish Convenios Colectivos – legal working conditions agreements covering different sectors of employment – were where the sick days related to pregnancy, childbirth or breast-feeding.
But the ECJ found that this went against EU law, since minimum holiday periods are a basic right of all workers and designed to allow them to relax, spend time at leisure and disconnect entirely from their work.
This differs considerably from the right to take time off due to illness, and it would 'go against the grain' for time allowed by law to relax and enjoy themselves to be taken up by sickness, said the court.
Spain's Supreme Court held in 2009 that sickness which arose prior to holidays being taken and which would interrupt fixed annual leave should be discounted from the latter, but the ECJ verdict has found that this should be taken one step further and should include illness occurring whilst the employee is already on holiday.
It goes without saying, however, that an employee in this situation would have to obtain a sick note from his or her doctor to justify recuperating the lost days of holiday.