EAT: Holidays and Sick Leave

Gillian Cumming
Gillian Cumming
Senior Solicitor
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Sick workers can choose to carry over holidays, but only for 18 months.

The Employment Appeal Tribunal (EAT) has recently confirmed that employees on sick leave do not have to demonstrate they are physically unable to take their accrued holiday because of illness in order to have the right to carry the leave forward to the next holiday year.

However, the EAT has also confirmed that the right to carry over holiday in such circumstances is limited.

In this case, the employee was a printer who took four years of sick leave following an accident. When he was dismissed he sought payment from his employer for holiday which he had accrued but had not exercised from 2010 to 2012.

The employment tribunal dismissed the claim on the basis that the employee could not demonstrate that illness was the reason for not taking holiday. The EAT overturned this finding, however, on the basis that the EU Directive does not require a sick employee to show they are unable to take holiday during sick leave; it is sufficient that the employee chooses not to take holiday during sick leave.

This finding was concerned with the four weeks of holiday granted under the EU Directive, and did not consider the additional 1.6 weeks provided for by the UK Working Time Regulations. It has been held in previous cases, however, that the additional 1.6 weeks is not eligible to be carried over.

The EAT also held that the right to carry over holiday is not unlimited and that, at most, the Directive allows workers on sick leave to carry over holiday provided that it is exercised within 18 months of the end of the leave year in which it accrues.

The parties have been given leave to appeal the decision to the Court of Appeal.

You can read the case here:

http://www.bailii.org/uk/cases/UKEAT/2015/0071_15_0807.html

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