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Statutory holiday entitlement of sick employees

Posted by TonyBrownEmploymentSolicitor on July 22, 2013

The statutory holiday entitlement of sickness-absent employees continues to cause confusion.

In 2012, the Court of Appeal ruled that a worker who is unable to take leave because of sickness absence is entitled to take it later, even if that means taking it in a subsequent leave year, and whether or not s/he has asked for the leave to be carried forward.

Strictly, however, that ruling applied only to the basic 20 days’ leave entitlement under the European Directive and not to the additional 8 days’ entitlement under the Working Time Regulations. In the next case, the EAT had to decide whether that additional annual leave could be carried forward in the absence of an agreement between the employer and worker. The EAT ruled that it could not.

In that case, the Claimant became ill in July 2010 and never returned to work. He resigned from his employment on 6 June 2011. The Claimant wrote to the employer seeking any holiday pay that was due to him for 2010 and 2011 and when he was not paid brought proceedings in the ET.

Before the ET it was agreed that the leave year was the calendar year. It was also agreed that the Claimant and taken 11 days holiday out of a 28 day entitlement in 2010, leaving 17 days; that the Claimant’s entitlement to holidays for 2011, calculated on a pro‑rata basis up to the date of resignation was 14 days. The ET ordered the employer to pay the Claimant for 31 holidays.

On appeal, the EAT ruled that in the 2011 leave year, the Claimant was entitled to 28 days’ statutory leave, with a pro rata reduction in respect of his leaving in the middle of the year. The order by the ET in respect of that year was therefore correct. In the 2010 leave year the Claimant was entitled to 20 days under the European Directive which carries unused leave over automatically. However, unlike ‘European leave’ the additional 8 days’ leave under the Working Time Regulations cannot be carried over unless the employer and worker have agreed to do so, which they had not in this case.

The effect of this was that the EAT reduced the award payable by the employer to 9 (20 – 11) days rather than 17 days for 2010.

Comments

In other words, a worker who is on long-term sick leave is entitled only to 20 days’ annual leave conferred by the European Directive and not necessarily the additional 8 days granted by UK law. The WTR permit holiday to be carry forward by ‘relevant agreement’ (for example, in the employment contract) but only into the immediately following leave year. In this case, there was nothing in the contract that allowed the Claimant to carry holidays forward. Although this did not matter for the 20 days’ basic leave entitlement, the absence of agreement was fatal to the additional leave under UK law.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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