Sickness absence and annual leave - reduction days to be carried forward

zzzLazyDaisy

Sood Enterprises v Healy (EAT)

This is a recently reported case in which the EAT held that when an individual is on long-term sick leave, only four weeks' annual leave carries over automatically - and not the additional 1.6 weeks granted by UK law which exceeds the European minimum of four weeks' annual leave.

paddedjohn

Since it says carried over does that mean the other 8 days can be used during the sick leave?

zzzLazyDaisy

paddedjohn wrote: »

Since it says carried over does that mean the other 8 days can be used during the sick leave?

The accepted position always used to be that you cannot be paid for statutory annual leave whilst on sick leave (the reasoning being that the purpose of the WTR is to provide a genuine rest break from work, which sickness absence does not provide)

However, I notice that many legal advisers are now saying the opposite - ie that an employee who is off sick CAN take and be paid for annual leave whilst on sick leave (there probably wouldn't be much point if the employee was covered by full pay under a company sick pay scheme).

There is a useful summary of the situation here (written before the recent EAT case).

http://www.dwf.co.uk/news/legal-updates/holiday-leave-and-sickness-absence-double-dilemma/

Obviously I can't comment on the accuracy of the information, but a quick google is throwing up similar results from other sources.

paddedjohn

Not just legal advisors saying it but also the Governments own website.

agrinnall

paddedjohn wrote: »

Not just legal advisors saying it but also the Governments own website.

Indeed it does, I just spotted it a few minutes ago.

From https://www.gov.uk/holiday-entitlement-rights

Other aspects of holiday entitlement

Workers have the right to:

• get paid for leave
• build up (‘accrue’) holiday entitlement during maternity, paternity and adoption leave
• build up holiday entitlement while off work sick
• choose to take holiday instead of sick leave

zzzLazyDaisy

Yes I spotted that this morning too...

It has always been the case that an employee can choose to take holiday instead of sick leave

The difference is that it seems now that an employee can be paid for annual leave 'while on sick leave'. I know it seems like semantics, but the old way was that the employee would actually have to come off sick leave in order to take annual leave.

However, I am very happy that it appears that employees can take their annual leave whilst remaining on sick leave as it also means that if they are on SSP they have a way of mitigating the financial effects of being off sick.

Having said that, this really only applies to employees on long term sick who are unlikely to return to work in time to take their holidays within the leave year.

For example, say an employee is off sick for three months at the start of a leave year, and asks for four week's annual leave to be taken during the sick period. After public holidays, that would leave the employee with no annual leave entitlement for the whole of the rest of the year. I suspect most employers would refuse an annual leave request in that situation.

What is important though (and the purpose of my OP) is that employees on long term sick should be made aware that only 4 weeks annual leave can be carried forward into the new leave year (unless the employer agrees otherwise). But you are right to raise the point, following on from that - they do need to make sure that they use up any remaining outstanding annual leave before the end of the employer's holiday year (which should be in their contracts / statement of particulars)

paddedjohn

If the employee has built up say 2weeks leave and wishes to take them while off sick then the employer can't refuse the request but as you say if the employee tried to book more than the accrued amount it would be up to the employer.

zzzLazyDaisy

paddedjohn wrote: »

If the employee has built up say 2weeks leave and wishes to take them while off sick then the employer can't refuse the request.

This ^^^ is not correct. The employer can refuse a request for holiday leave, provided the correct notice is given.

https://www.gov.uk/holiday-entitlement-rights/booking-timeoff

paddedjohn

The way I read the Gov website says otherwise, according to this it is the employees right to choose, not request.

Other aspects of holiday entitlement

Workers have the right to:

• get paid for leave
• build up (‘accrue’) holiday entitlement during maternity, paternity and adoption leave
• build up holiday entitlement while off work sick
• choose to take holiday instead of sick leave

Anyway, the employer would have no legitimate reason to refuse even if they had the option.