Coronavirus: Employer’s resource centre — live guidance available here

Holiday entitlement for sick workers: further developments

Employment Law & HR
BG Purple

The vexed topic of holiday entitlement for workers who are absent from work due to illness has been clarified by a recent judgement from the European Court of Justice.

It has been the position for some time now that workers will continue to accrue their statutory entitlement to holidays for periods when they are absent due to sickness, and that if the worker is prevented from taking his annual leave in one holiday year due to absence caused by ill health, the employer must allow that period of leave to be carried forward to the next holiday.

What was not clear, however, was whether that right extended to the full 5.6 weeks’ statutory entitlement in the UK, or just to the four week minimum period provided for under the European Working Time Directive.

The judgment from the European Court of Justice has confirmed that employers need only allow employees to carry forward the unused element of the four weeks’ annual leave provided under the European Directive. The decision as to whether to allow more generous leave entitlements to carry over should be left to each individual Member State.

The UK Government announced proposals last year to amend the WTR to expressly allow employees who are unable to take their holidays due to sick leave to carry them forward to the next holiday period. The consultation only made reference to the four week entitlement provided in the Directive.

The Government’s proposals also touched upon how long the holiday entitlement carry-over period will be for sick workers, though it is not clear yet what time period is likely to be introduced.  From European case law, it is likely to be a period of at least 15 months.

Employers should bear in mind though that if their contracts of employment allow for more generous carry over provisions, then the contractual terms will prevail.

The question as to whether employees off sick must specifically request to carry over their annual leave entitlement (and lose it if they fail to do so) remains unanswered but hopefully should be clarified soon.

Feel free to contact your legal manager if you wish to discuss this, or any other matter, in more detail.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division