Thread: Carrying over sick workers' annual leave

What can employers do to limit the fall-out from European decisions affecting the UK's working time rules?

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Hi, I would really like some advice about carrying over a sick employee's holiday entitlement to the next holiday year please.

We have an employee who has been off sick from work since February 2011 and is due to return (following a period of rehabilitation) early January 2012. His holiday entitlement is 28 days and the holiday year is from January to December. Our LTS employee has not yet used any of their holiday entitlement.

My question is when he returns to work in January, will he be entitled to carry over 5.6 weeks holiday entitlement or 1.6 weeks from 2011 or should I pay his accrued holiday asap? He is only receiving SSP at the moment and he hasn't asked about taking holidays. I'm quite confused following the ECJ ruling following the cases of Stringer (accrual of leave during sickness) and Pereda (carry over leave due to sickness).

p.s. Our terms and conditions state that there is no right to carry holiday entitlement into the following year.

I would appreciate any advice..

Hi HR Superstar!

Sadly, failure to pay statutory holiday pay constitutes as an unauthorised deduction of wages and also a breach of an employee's right to take statutory leave or to be paid for holidays under the Working Time Directive.

An employee has a right to accrue statutory holiday entitlement during sickness absence (the same as in maternity/paternity leave). If an employee has been unable to take their holidays because of sickness absence, as in your case, then in effect their entitlement is 'banked' during this period. Therefore, on return from LTS, the employee has the right to take their accrued holiday entitlement.

The change overrides your terms and conditions that do not have the right to carry forward holidays as this employee has been able to take holiday.

I have assumed that your holiday entitlement of 28 days includes the statutory 20 and 8 public and bank. However, you need to check your terms and conditions to see if they get additional public and bank holidays as in 2011 there were 9 not 8 (same in 2012).

The last thing you want is a claim for an unauthorised deduction or even a disability discrimination claim and therefore my advice would be to write to the employee and say how much holiday they have accrued during their absence and ask them if they would like to receive payment for this in their December pay so that when they return in 2012 they start with no carry forward of holidays. In the letter you should, of course, give them the option to be paid or take their holidays before they return to work.

This change came in force in July 2009 - you may find an old factsheet helpful as I think you need to review your current terms and conditions and any sickness absence policy (maybe even your maternity policy)

http://www.hrsolutions-uk.com/attachments/HolidayRights-FactSheet_July09_.pdf

I hope you found this helpful?

Good luck

Carol