Employment Law Update (February 2009)
Holidays and long-term sickness absence
Where an employee is off long-term sick, what rights do they
have to paid holiday?
This is a question that has troubled employment tribunals since
the introduction of minimum paid holiday entitlement under the
Working Time Directive more than 10 years ago.
It is quite clear that where an employee has some sickness
absence during the holiday year, annual holiday entitlement
continues to accrue. What has not been clear is what
entitlement to holidays there is where an employee is off sick
throughout the whole holiday year or longer. The question may
arise where a sick employee has been allowed to remain "on the
books" for a long time, perhaps because action to dismiss the
employee during sickness is seen by the employer as inappropriate
or insensitive.
A long-running claim is currently being considered by the
highest court in the UK, the House of Lords, and the Lords asked
the European Court of Justice for help interpreting the Working
Time Directive before reaching a decision.
The effect of the European Court guidance
- Even when on long-term sickness absence, workers continue to
accrue four weeks' paid holiday due under the Working Time
Directive;
- Workers should be able to take the holiday when they have the
opportunity – but there is no requirement to pay the holiday while
the worker is still off sick;
- If employment is terminated during or after sickness absence,
the worker must be paid for any holiday accrued but not taken.
What you should do
- Take advice. The position is not straightforward, and may be
affected by the worker's contract. The government might also
need to make changes to UK law;
- While holiday continues to accrue, in most cases this will only
be the four week minimum entitlement under the Working Time
Directive;
- There is no automatic right for the worker to get a payment of
"holiday pay" while off sick. Because sickness absence and
holidays are different, you could leave any discussion about taking
holiday until after the employee returns to work.