Tuesday, September 15, 2009

Subject to some malfunction

The Daily Telegraph runs a lead item today (with a very similar piece in The Times), reporting that workers who fall ill during their holidays could now claim the time back from their employers.

Open Europe attributes the original story to People Management, but the Telegraph version says that this new situation follows "a landmark European Court of Justice judgement", although the report does not confirm that this is the case.

It is, we are told, an extrapolation from a judgement in favour of an employee who claimed that he should be able to shift his scheduled holiday because he had fallen ill just before he was due to go on leave, claiming sickness entitlement until he was fit enough to go on leave.

If the interpretation is correct, this means that the system can be abused, as the newspaper claims it can be. Someone actually on holiday, where self-certification is in force, can go down with a cold for a few days, or some such (or pretend to do so), and claim those days as sick leave, thus extending their holiday entitlement.

Experience, though, warns against taking anything a newspaper might say about an ECJ judgement at face value, without first reading the judgement on the court's website. Reference to the site, however, tells us that publication of case reports "... may be subject to some malfunction during the month of September." That prediction seems to have been accurate. There is no record of the case to which the newspaper refers.

But the ECJ is more accurate than it perhaps intended. If the Telegraph is even close to reporting the truth, there is indeed "some malfunction" ... in the whole system by which we are governed. On the face of it, the court is saying that sickness is a one-way bet. Leave entitlement only applies if you are healthy. If you are sick while on leave, the employer pays.

Maybe that is fair – maybe not. But it does add yet another burden on already hard-pressed employers. Such a decision, to impose yet more burdens, should be taken by our Parliament, after due consideration and debate. But these issues are no longer decided by our MPs. We have a supreme court in Luxembourg which tells us what we must do.

That is unacceptable. We all know it is unacceptable. But that is our system of government. And that is another reason why we must leave the EU.