Holiday Accrual during Periods of Sickness Absence
- Date: Wednesday 12th August 2015
You may have heard that, under the Working Time Regulations, employees are entitled to claim back holiday if they are signed off sick while on leave. Any holiday employees have not been able to use due to sickness absence should be carried over into the new holiday year and used within 18 months.
This regulation was given a new dimension by a recent Employment Appeal Tribunal judgement.
The case: Plumb v Duncan Print Group Ltd
The claimant was off sick from 2010 until his dismissal in 2014 and did not request any holiday during this period. Following his dismissal, he filed a compensation claim, arguing that he was entitled to full holiday payment for all 4 years, due to being unable to take his leave.
The tribunal dismissed the case but the claimant’s appeal to this judgement was upheld in part.
The EAT said that the employment tribunal wrongfully suggested that the claimant would have had to prove that he was unable to take his holiday due to his medical condition.
Article 7 of the Working Time Directive requires that an employee who is on sick leave is not required to take annual leave but may choose to do so. No proof of ability to take annual leave is required to confirm the entitlement.
However, since the Working Time Directive also stipulates that any untaken leave should be taken within 18 months, the EAT only allowed payment for that period, not the previous years.
What this means for you
This case shows how important it is to communicate with employees while they are on sick leave. It should have been made clear to the employee what the organisational rules are on holiday during sickness, and he should have been allowed to receive his holiday pay.
Check your policies and procedures and discuss any issues with your HR Advisor. Communication with your employees is vitally important and summarising conversations during long term illness in an email or letter can be advantageous. Long term absence can be tricky to handle and we’re happy to support you with this and any other related issues.