It is over 10 years since the courts decided that a worker too sick to work, could continue to accrue holiday under the Working Time Regulations. That point is simple enough to understand, but numerous issues remained unresolved not least because the Working Time Regulations, as currently drafted, do not mean what they say.
Where does this leave employers? Let’s start by examining what we do know.
- The Working Time Regulations require a worker to take annual leave in the year in respect it is due. It cannot be replaced by a payment in lieu except on termination of employment.
- The right to accrue holiday only applies to the 20 days required by the Directive, not to the additional 5.6 days provided under UK law unless an agreement says otherwise.
- If a sick worker cannot, or does not wish to take holiday during the current leave year, it can be carried over to the next leave year (even though this is at odds with the strict wording of the Regulations).
- A worker does not have to ask to take annual leave whilst sick to preserve their right to take it at a later date, or to carry it over to the next leave year.
- You cannot ask a sick worker to demonstrate that they are physically unable to take annual leave whilst they are sick and must assume that if the worker does not ask to take holiday during sick leave it will accrue and, if necessary, be rolled over to the next leave year. This will be the case even if the employee is not sick for the whole of the leave year.
- A worker who becomes ill either before a period of scheduled leave or during that leave must be allowed to take their holiday at another time – even if this means allowing them to carry the leave over to another year. However, you can insist that your staff provide evidence of their illness such as a fit note or doctor’s certificate to prevent abuse.
- The right to accrue annual leave does not continue indefinitely and you can impose a “cut off date” of up to 18 months from the end of the leave year in which the holiday accrued (although it might be possible to reduce this to 15 months).
Annual leave serves a dual purpose: first, to allow the worker to rest from their duties, and second; to allow them a period of relaxation and leisure. The courts have acknowledged that there comes a time when leave ceases to have its positive effect and is merely a period of relaxation and leisure, and if allowed to go back indefinitely, it may also prevent the worker from re-integrating into the workforce. So, essentially, there needs to be a cut off point beyond which a worker should not be permitted to carry over leave into a subsequent leave year.
Recent European cases have held that restricting carry over to 18 or 15 months from the end of the relevant leave year is sufficient (but that 6 or 9 months is not).
More recently, the EAT held in the case of Plumb v Duncan Print Group that ‘at most’ accrued annual leave should be taken within 18 months from the end of the leave year in which it accrued. This was in line with the principles of the International Labour Organisation (not binding in the UK) which also provides that one uninterrupted block of 2 weeks must be taken within one year of the end of the year in which the holiday accrued, and the balance within a further six months.
Our recommendation is to adopt a robust approach to any speculative or optimistic claims by sick workers within the framework set out above.