Court rules - staff off sick are too ill to request holiday

Employment Law & HR update 05/10/2011

Workers who are on sick leave for long periods cannot be assumed to be fit enough to make requests for annual leave, the Employment Appeals Tribunal has ruled. The ruling is important, because it means employers must allow staff who have been off sick long-term to take accrued holidays after they return to work, regardless of whether they have requested holiday. It also means that employers must permit such employees to carry over holiday entitlement which is unused due to illness in one holiday year into the next holiday year.

The case, heard by the Employment Appeals Tribunal (EAT), is the first in the UK following rulings in the European Court of Justice (ECJ) about workers' rights to paid holiday during, or following, periods of long-term sickness absence. The bad news for employers is that the EAT has taken the line that is least helpful for employers – although it reasons that it was bound by the ECJ ruling to do so.

What rights to holiday do workers on long-term sickness absence have?

Employees who are on sickness absence, whether short or long-term, are entitled to a minimum of 5.6 weeks' paid annual holiday under UK law. This includes 4 weeks' due under the European Working Time Directive and an additional 1.6 weeks' under minimum UK rules.

Do employees who are off sick during the whole holiday year still accrue holiday pay?

Yes, they accrue a minimum of four weeks' paid holiday under the European Working Time Directive, even if they are absent for the whole holiday year and even if they have exhausted any sick pay entitlement.

What does the ruling mean?

Before the ruling, it might have been possible to argue that, if a worker who is absent due to sickness does not request to take any accrued holiday before the end of the holiday year, the entitlement has been lost and is not carried over into the following year.

The ruling means that this is no longer possible, and means that employers must carry over the holiday entitlement and allow the employee to take the holiday when he or she returns to work or make a payment in lieu if the employee leaves.

Help with holidays

MentorLive can help you understand the legal position on workers' holiday entitlement and calculate outstanding entitlement.

More details of the law on holidays can be found on MentorLive.

You can also access the Holiday Calculator within MentorLive.

Next Story - National Minimum Wage increase

Previous story - Cool it!