The law is now clear that an employee on long-term sickness absence continues to accrue holiday whilst they are off sick (please see our articles here). The establishment of this principle has still left a number of questions, particularly as the Government has not yet updated the Working Time Regulations to clear up some of the outstanding issues.
One outstanding question was whether the carry over of unused holiday from one holiday year to the next applied only to the 4 weeks’ minimum holiday set out in the EU Working Time Directive, or whether it also encompassed the additional 1.6 weeks provided for in the UK Working Time Regulations (which set out a minimum holiday entitlement of 5.6 weeks’ holiday for full-time employees per holiday year).
This question has now been answered by the Employment Appeal Tribunal in the case of Sood Enterprises Ltd v Healy . The answer is that only the 4 weeks’ annual leave automatically carries over for an employee on sickness absence. The additional 1.6 weeks will only carry over if there is an agreement between the employer and employee that it will do so. Therefore, it also seems likely that this principle will apply if an employer has a more generous holiday entitlement than the 5.6 weeks’ minimum.
This is welcome clarification. However, employers may well wish to review provisions related to carry over of holiday entitlement in their employment contracts and/or sickness absence policies. If there is a lack of any specific provisions about holiday carrying over could mean that an Employment Tribunal may deem that there is an implied agreement that all holiday entitlement will carry over.
Are you grappling with an issue concerning holidays and sickness absence? Do you want to update your employment contracts or sickness absence policy? We can help – please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).