Carrying over holiday for sick workers

ALTHOUGH for many the summer holidays already seem like a distant memory, the issue of how much annual leave a worker that is unwell and unable to attend work can accrue continues to provide headaches for many employers.

It is over 10 years since the courts decided a worker too sick to work, could continue to accrue holiday under the Working Time Regulations.

That is simple enough to understand, but numerous issues remain unresolved, not least because the Working Time Regulations do not mean what they say.

The Working Time Regulations require a worker to take annual leave in the year in respect it is due.

The right to accrue holiday only applies to the 20 days required by the directive, not to the additional eight days provided under UK law unless an agreement says otherwise.

Even though it is at odds with the strict wording of the regulations, if a sick worker cannot, or does not wish to take holiday during the current leave year, it can be carried over to the next leave year.

The employee does not have to ask to take annual leave whilst sick to preserve their right to take it at a later date, or to carry it over to the next leave year.

An employee who becomes ill, either before a period of scheduled leave or during that leave, must be allowed to take their holiday at another time – even if this means allowing them to carry the leave over to another year.

The right to accrue annual leave does not continue indefinitely and you can impose a cut-off date of up to 18 months from the end of the leave year in which the holiday accrued (although it might be possible to reduce this to 15 months).

So where does leave employers? Recent European cases have held restricting carry-over to 18 or 15 months from the end of the relevant leave year is sufficient (but that six or none months is not). More recently, the EAT held in the case of Plumb v Duncan Print Group that ‘at most’ accrued annual leave should be taken within 18 months from the end of the leave year in which it accrued.

Our recommendation is to adopt a robust approach to any speculative or optimistic claims by sick workers within the framework set out above.

Fergal Dowling is head of employment at Irtwin Mitchell