Annual leave carry over for staff on long term sick

03 November 2013
Annual leave carry over for staff on long term sick

A recent decision from the Employment Appeal Tribunal has clarified that, unless an employer agrees otherwise, an employee only has the right to carry over four weeks' worth of accrued annual leave into the next holiday year while off sick.

This decision is the latest in a long line of cases previously discussed on HRBird.

The reason for the amount of case law in this area is that UK legislation is not entirely compliant with EU law:

The UK Working Time Regulations 1998 give workers the right to a minimum 5.6 weeks annual leave each year. However holiday not taken during the holiday year by staff is lost.

This does not agree with the EU Working Time Directive which provides that workers are entitled to accrue holiday and carry over leave into the following holiday year if they are unable to take it because of long-term sickness absence. However EU law only guarantees 4 weeks' holiday by law to workers.

Thus while the UK has not amended its laws, employment tribunal cases continue to be taken to court, where EU law as well as UK law is taken account of in decisions.

Actions for employers

  • Check organisation policies and terms and conditions to see whether any provision is made for staff to carry over more than 4 weeks holiday into the following holiday year while staff are on long term sick.
  • Offer staff the opportunity to take annual leave during absence to avoid a build up of accrued annual leave. Staff may take paid holiday during absence but cannot be forced to.
  • Remember that staff who leave the organisation through resignation or dismissal are entitled to be paid for outstanding leave accrued.

For further information, see the absence and annual leave & time off sections of HRBird.

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