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Sick employees’ holiday entitlement In the latest instalment of the continuing holiday entitlement saga, it has been held that employees do not need to be “unable” to take their accrued holiday due to ill health. Instead, they have a choice – to take holiday during their sick leave, or to carry it over into future leave years. If they choose to carry it over, then they have 18 months from the end of the leave year in which it accrued in which to use the leave. Workers on long-term sick leave remain entitled to accrue statutory holiday. Workers are entitled to carry forward the four weeks of leave (provided for by the Directive) and to be paid for this leave on termination, even if they are absent due to illness for an entire leave year and even if they do not request to carry the leave forward in advance of the leave year coming to an end The EAT has recently considered two issues previously left unresolved, namely: •
do sick workers need to be “unable” to take holiday to carry it forward into future leave years; and
•
is there any limitation on the carry-over period.
An employee, P, suffered an accident at work in April 2010 and remained on sick leave until his employment was terminated in February 2014. P did not take paid annual leave for the leave years 2010, 2011 and 2012. After it became apparent that he had been entitled to accrue leave during those years, P requested to take a total of 60 days' paid holiday (20 days for each missed year). After his request was refused, P brought a claim for unpaid holiday pay in respect of these leave years. The employment tribunal dismissed P's claim, holding that P would have to establish that he was actually “unable”, by reason of his medical condition, to take holiday whilst he was on sick leave. On appeal, the EAT overturned the tribunal's decision, holding that: “workers on sick leave do not have to show that they are “unable” to take annual leave because of their illness. They have a choice - to take leave if they wish or to carry it over” But if they choose to carry leave forward, they can only do so for a maximum of 18 months from the end of the leave year in which it accrued. The decision may be appealed. An overhaul of the Working Time Regulations 1998 is arguably long overdue - the last government's review seemingly having ground to a halt. In several respects the regulations can no longer be relied upon to present the whole picture - it is necessary to consider the case law to fully understand an employer's obligations towards its workers. For any claims issued after 1 July, there is a limit of two years upon backdated unlawful deduction from wages claims , but the EAT's decision here suggests that any claim older than 18 months from the end of the relevant leave year is bound to fail. Workers on long term sick leave may therefore be keener to take their accrued leave in the current or next leave year to avoid the risk of missing out entirely. The information contained in this article is for general information purposes only and does not claim to be comprehensive advice. If you need any assistance on this or any other issue, then please contact Kerry McGowan for more detailed information: 07970 489321. Free 1 hour consultation for all new HR & H&S clients.