Business Law: Andrew West examines the law on sickness leave and holidays

Andrew West, Gotelee Solicitors.

Andrew West, Gotelee Solicitors. - Credit: Archant

Where a worker has been on long-term sick leave and hasn’t used their holiday entitlement, they may be able to carry it forward to the next holiday year.

The European Court of Justice has made it clear that the idea is to preserve holiday entitlement for a time when it will benefit the individual, as opposed to them being required to take it when they are off work, sick.

In the absence of an agreement saying otherwise, this right applies to the four weeks statutory minimum holiday entitlement granted by Europe. But does this right hinge on the employee being able to show that they weren’t able to take the leave because they were ill?

It seems not. The Employment Appeal Tribunal (EAT) has decided that an employee who had been off work for four years was entitled to be paid for some accrued but untaken holiday – but not all of it.

Mr Plumb had an accident in 2010 and was off work from then until his employment terminated in 2014. He had claimed 60 days’ holiday pay for 2010, 2011 and 2012.


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The original tribunal dismissed his claim, saying that he couldn’t show that he was unable to take holiday during those years while on sick leave. The EAT held that an employee doesn’t need to show this.

Where a worker hasn’t taken annual leave because of sick leave, they are entitled to take it within a reasonable period of the end of the leave year in which it accrued – which, in this case, the EAT thought, was 18 months. So Mr Plumb was entitled to payment for the holiday year that ran from 2012 to 2013.

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He couldn’t be compensated for earlier years because the EAT only allowed 18 months’ of leave to be carried forward. So it seems that there are limits on how far employees can look back when claiming for holiday pay in these circumstances.

This might not be the final word on the subject. The Employment Appeal Tribunal has granted permission to appeal, so we shall have to wait and see what comes of this. We think that it is unlikely that the decision will be materially changed.

: : Andrew West is a partner atGotelee Solicitors. For any employment advice, contact Andrew on 01473 298102 or email Andrew.west@gotelee.co.uk .

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