1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144 
DI' i
Page 28
Page 29
If you've noticed an error in this article please click here to report it so we can fix it.
Employees on sick leave are entitled to accrue holiday, according to a new ruling from Europe.
Words: Helen Rice-Birchall
Workers are entitled to take or accrue holiday while on sick leave, a new ruling from the Brussels-based European Court of Justice (ECJ) has stated, and that is likely to affect every business in the land, road transport included.
This ruling has arisen from the introduction of the Working Time Directive, which says that employees are entitled to a minimum of four weeks' leave a year.
The ECJ maintains that it is up to member states whether or not annual leave can be taken during a period of sickness. In the UK, that seems to mean workers can take paid annual leave while on sick leave, unless a relevant agreement says otherwise, or an employer exercises its rights under the regulations to restrict the timing of leave.
This part of the decision raises a number of complex issues. For example, will an employee who is absent on sick leave and has exhausted their sick pay he entitled to be remunerated for a bank holiday on which they would, had they not been sick, be on holiday and also be paid for?
Carrying forward untaken leave
Employers who do not allow workers to take annual leave during sickness absence cannot wriggle out of their obligations.
The ECJ says that a worker unable to take their annual leave for that year must be allowed to carry it over to the next holiday year.
However, what the EC,I's ruling is not completely clear over is when someone will be treated as 'unable' to take their leave.
If a worker has an unrestricted right to take annual leave during sickness absence, but chooses not to do so, can they carry forward their untaken leave?
Hopefully the House of Lords will address this issue when the Stringer case (see panel) returns there later this year or in 2010.
Directive permits The House of Lords could hold that, since UK legislation permits holiday to be taken during sick leave, UK workers are generally able to exercise their right to paid annual leave despite incapacity (unless their employer or a relevant agreement says otherwise), and so will not usually be entitled to 'carry over' chunks of leave.
Even if the House of Lords concludes that the directive permits workers to carry forward leave in some circumstances, it does not automatically follow that the regulations offer that right. The working time regulations specifically say that leave can only be taken in the year in respect of which it is due. Payments in lieu when employment ends The ECJ has confirmed that the directive gives workers who have been on sick leave for all or part of the current leave year the right to a payment in lieu of their untaken leave on termination of employment.
Such a payment must be calculated according to the worker's normal pay.
Any such payment will presumably include a payment in lieu of untaken leave carried over from a previous leave year.
The EC.' has not spelled this out as such, but further clarification for the UK may emerge via a ruling from the House of Lords. is • Helen Rice-Birchall is an associate practice lawyer in the human resources group of international law firm Eversheds.
Further info
European Court of Justice: rittp://curia.europa.eu