What is going on with the law about holidays and sick leave?
Currently, the basic position is this:
- Workers on sick leave continue to accrue the 4 weeks annual leave granted by the EU Working Time Directive (No.2003/88).
- If they are unable or do not want to take this annual leave whilst off sick, workers have the right, on request, to take that leave at another time.
- If being sick prevents a worker from using this annual leave entitlement during that holiday year, they can take it during a future leave year.
- The worker can reclaim any of this annual leave during which they were sick, whether they became sick before the leave began or during it.
So workers on sick leave can accrue and roll over holiday entitlement forever?
It seems not. The European Court of Justice has stated there is no right to carry over leave indefinitely. But there is no clear guidance on how long leave can be carried forward.
What if we have a clause in the employment contract that says leave cannot be carried over?
In the case of an employee on sick leave unable to take holiday the law laid down by the European Court of Justice will apply. However, the clause is still useful as it may apply to other employees.
Can workers get their holiday back if they are sick on annual leave?
Yes. But it seems this will only apply to the 4 weeks annual leave under the European Directive.
What do we do to protect our business?
Make sure you have comprehensive sick leave and annual leave policies. For example, you might want to include a provision saying that employees wanting to recoup their holiday because of sickness need to;
- follow the company sick/absence policies (e.g. phone in to work in the same way they would if they were ill during work time); and
- have evidence of the duration of the illness (such as a doctor’s note or hospital admission form).
You might also want to consider a provision explaining how leave can be carried over into another year, and the mechanism for requesting that.
What about annual leave in excess of the 4 weeks in the EU Directive?
It seems that Europe is going to leave it to member states to sort that out for themselves. Generally, any additional contractual leave will be covered by the provisions in the employment contract.
When is all this going to be sorted out?
The Government’s consultation about how to reform the Working Time Regulations ended in August last year. The Government has accepted the need to reform the Working Time Regulations, but has not given a timescale yet.
If you have any questions you can call Law Express on 01275-378727.