In two recent cases, the courts have reached verdicts on the legitimacy of the UK’s mandatory retirement age and the right of employees to take more annual leave when sickness spoils a holiday. Jenny Wotherspoon explains the cases and the dreadful “Heyday” pun.
Topic: Leave entitlement
Who: The Heyday and Pereda Decisions
Where: The High Court and the European Court of Justice ("ECJ")
When: October 2009
Law stated as at: September 2009
What happened:
- The UK High Court held that the UK's mandatory retirement age of 65 is lawful; and
- The ECJ held that under the Working Time Regulations 1998 ("WTR") workers who fall ill during a period of pre-booked annual leave must be allowed to take that leave at another time, if they make such a request.
Background:
Age Discrimination and Retirement – The Heyday Decision
The High Court has now handed down its decision in the Heyday litigation in which the legitimacy of the UK's mandatory retirement age of 65 was challenged. The "Heyday" monicker comes from the name of the pressure group that is linked with Age Concern that brought the case.
The High Court confirmed that the mandatory retirement age of 65 is lawful and as a result, employees can continue to be forced to retire at 65, provided that a fair retirement procedure, which complies with the statutory conditions, is followed.
Holidays and Sickness Absence – The Pereda Decision
Mr Pereda was employed in Spain as a truck driver. He was due to take annual leave from 16 July to 14 August, however, following an accident he was on sick leave from 3 July to 13 August. Mr Pereda asked his employer to allow him an alternative period of leave but this was refused. Mr Pereda made a claim to the Madrid Labour Court who referred this issue to the ECJ.
The ECJ ruled that where a worker has lost the opportunity to exercise the right to take previously scheduled annual leave because of illness, the worker should be able to take that lost leave at another time including carrying it over to another holiday year, if they make a request to do so.
Why this matters:
Heyday
Whilst this decision is good news for employers in the marketing and advertising sector, its impact is likely to be short lived as the Government has already announced that it will be bringing forward a review of the mandatory retirement age to 2010. It is widely expected that the review will lead to an increase in the retirement age to reflect increasing longevity and decreasing pension benefits.
Pereda
The decision means that where a worker falls sick before or during a period of scheduled annual leave under the WTR so that they cannot take the annual leave, then they can request to take it later. However, if a worker wishes to take holiday during a period of sickness absence they may be permitted to do so.
This decision means that employers will have to be more vigilant to look for cases where employees, who may have enjoyed their holiday a little too much, fall ill as a result and then claim sick pay and claim additional holiday at a later date!
Employers should ask for sick notes covering any period of illness before or during annual leave and keep records to assist with monitoring employees' patterns of behaviour in this regard.
The decision in Pereda leaves a number of questions unanswered, in particular, what happens where an employee seeks to carry over their leave under the WTR from one leave year to another. Pereda held that employers should allow such a request. However, this is expressly contrary to the provisions of the WTR which provide that an employee must take all their holiday in the particular leave year to which it relates. Unfortunately, we will have to wait for legislation or further case law to resolve this issue.
