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Employers must get set for new

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Employers must get set for new "Sunshine Sickie" ruling With a landmark European ruling allowing workers to claim back holidays lost due to sickness, employment law experts are urging employers to take the initiative in tackling the new requirements, to avoid being caught out. Alexandra Dean of Chelmsford based lawyers Gepp & Sons said: "This is a new style of duvet day – a Sunshine Sickie ruling - that could cost businesses thousands in lost working hours, unless they prepare themselves to avoid abuse." The ruling is effectively a new interpretation of the European Working Time Directive on workers' hours, which applies in Britain across the entire private and public sector. Delivered this week, the ruling by the European Court of Justice held that workers on sick leave during what would otherwise have been their holiday, have the right to take annual leave "at a time other than originally scheduled, if necessary outside the corresponding reference period". This will allow employees who are ill during holiday leave to request it be 'reallocated' to another time, including carrying their annual leave over into the next holiday year. If employers fail to allow the revised holiday slots they risk an employment tribunal under a breach of the Working Time Directive. Alexandra Dean added: "To avoid abuse by employees, companies need to take action now to update their employment contracts. The principle applies no matter what is in your current contract of employment, so you can't contract out of this, but a well drawn contract of employment can ease the burden of the ruling. "It's a complex area where companies will need specialist technical advice. It may change in future, but the new ruling doesn't specify how or when employees should notify their sickness, so employers can ask for convincing evidence to prove the sickness would have made them unfit for work. That could include asking for a doctor's note, in addition to any usual self certification procedure." She added: "Taking time to ensure employees understand company policy now could pay off later." This is not legal advice; it is intended to provide information of general interest about current legal issues. Note to editors: The ruling was delivered on 10th September in Pereda v Madrid Movilidad (case C-277/08). It was heard at the EU court, in Luxembourg, regarding Francisco Pereda, who works for Madrid city council. Mr Pereda had been scheduled to take a month's annual leave in the summer of 2007. Following an injury shortly before his annual leave was due to start, he asked to move his holiday, but his employer refused. The court decided that he should have been allowed to take his holiday at another date — and if necessary that it could be carried forward to the next holiday year. • For additional information or comment please contact: Alexandra Dean of Gepp & Sons.