As the holiday season approaches, employers need to take particular care regarding the tricky area of entitlement to holidays for employees who are sick. Are you aware of your obligations to:
An employer has an obligation to an employee with long term sickness and an employee whose annual leave falls when they are currently off work with illness.
In a recent case this issue was raised and clarified. The result is that under the Working Time Directive an employee on sick leave will carry on accruing annual leave allowance, despite not being in work. There were some key points raised.
An employee who is long-term sick will not lose their legal right to annual leave and will be permitted to benefit from the full statutory annual leave allowance.
Workers can take paid leave As the statutory holiday continues to accrue during sick leave, this means that a worker will be entitled to take the holiday even if they are on sick leave. So, having given the requisite notice, a worker is entitled to take the leave and be paid the going rate for annual leave rather than sick pay. Even if a worker has used up their entitlement to sick pay, they will be entitled to be paid in respect of their statutory holiday entitlement.
This case highlights the fact that employers may eventually be required to pay workers for any leave entitlement the worker has accrued that has not yet been taken from the beginning of the workers absence. Employees can perhaps convey their claim as a deduction from wages claim under the Employment Rights Act.
However, this case suggests that employers might eventually have to pay workers for any leave entitlement which has accrued but not been taken going back to the beginning of a worker's absence. This is because workers can arguably bring their claim as a deduction from wages claim under the Employment Rights Act (which can go back further) rather than under Regulation 30 of the Working Time Regulations (which is limited to the leave year in question).
With the situation remaining unclear at present, this is an issue which is a certainty to be revisited by the courts in the near future.
An employer has an obligation to an employee with long term sickness and an employee whose annual leave falls when they are currently off work with illness.
In a recent case this issue was raised and clarified. The result is that under the Working Time Directive an employee on sick leave will carry on accruing annual leave allowance, despite not being in work. There were some key points raised.
An employee who is long-term sick will not lose their legal right to annual leave and will be permitted to benefit from the full statutory annual leave allowance.
Workers can take paid leave As the statutory holiday continues to accrue during sick leave, this means that a worker will be entitled to take the holiday even if they are on sick leave. So, having given the requisite notice, a worker is entitled to take the leave and be paid the going rate for annual leave rather than sick pay. Even if a worker has used up their entitlement to sick pay, they will be entitled to be paid in respect of their statutory holiday entitlement.
This case highlights the fact that employers may eventually be required to pay workers for any leave entitlement the worker has accrued that has not yet been taken from the beginning of the workers absence. Employees can perhaps convey their claim as a deduction from wages claim under the Employment Rights Act.
However, this case suggests that employers might eventually have to pay workers for any leave entitlement which has accrued but not been taken going back to the beginning of a worker's absence. This is because workers can arguably bring their claim as a deduction from wages claim under the Employment Rights Act (which can go back further) rather than under Regulation 30 of the Working Time Regulations (which is limited to the leave year in question).
With the situation remaining unclear at present, this is an issue which is a certainty to be revisited by the courts in the near future.
About the Author:
Hatton Commercial Solicitors are an expert Employment Law Firm and specialise in Employment Litigation.
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