Holidays and sickness absence Another calendar year and for many employers another holiday year draws to a close. Once again, the long running saga of how to deal with holiday leave entitlement for those on sick leave has been a feature of 2012. Basically, European case law means that workers on long-term sick leave can take holiday leave even if they are still on sick leave. However, if such a worker is 'prevented' from taking their leave due to their sickness, they must be allowed to carry it over to the next holiday year. Reconciling this with the provisions of the Working Time Regulations 1998 (WTR) which prohibit carry-over and contain notice requirements is no mean feat. In light of potential difficulties the issue throws up and ever-developing European jurisprudence, it is unsurprising that we still do not have the Government's response on how it intends to tackle the issue following its summer 2011 consultation. However, we do have even more case law.

  • More out of Europe

The Court of Justice of the European Union (ECJ) in ANGED, has expressly confirmed that a worker who becomes unfit for work during a period of statutory annual leave must be entitled to reschedule that annual leave at a later time. This was an unsurprising decision given the earlier case of Pereda which held that a worker who becomes unfit for work before a period of statutory annual leave must be able to take that leave at a later date.

What ANGED does not answer, are the questions around the need for employees to have complied with sickness absence reporting requirements and the extent to which the sickness needs to impact on the holiday. For instance, an employee sprains their ankle skiing on day three of a two-week holiday - they can no longer ski while they're away but can enjoy the chalet/spending time with friends? Does the sick employee actually need to ask to defer holiday leave?

  • Last year we had two conflicting EAT decisions on whether an employee on sick leave needed to actually request to carry over untaken holiday before the holiday year ended. In Larner, the EAT said 'no', but in Fraser, the EAT said 'yes'.

Now the Court of Appeal in Larner, has confirmed that for a worker on sick leave for an entire leave year, the failure to request to take or defer annual leave does not affect their right to carry that leave over into a new holiday year. It will be presumed that a worker on sick leave will not have had an 'opportunity' to take annual leave due to their illness.

The Court quickly distinguished this from a Fraser type of case. In Fraser, following a two-year period of sickness absence, the employee was certified as fit to return to work in a reduced capacity for almost a year before being dismissed (although no role found). Therefore, she had had the 'opportunity' to take her holiday in the year before her dismissal.

Despite being invited to do so by both parties, sadly the Court of Appeal declined to provide general guidelines for cases such as these. Mummery LJ stated that he was 'nervous' about offering judicial guidance at a time when the interpretation was constantly evolving and there was a steady stream of cases being referred to the ECJ.  

Rest breaks

A worker can only bring a claim for breach of the WTR rest break provisions where the employer has refused to allow the worker to exercise their rights to rest. Accordingly, the EAT has confirmed that an employee whose working pattern did not allow for breaks as specified under the WTR, but who never sought to exercise her right to daily and weekly rest periods, could not establish a claim. In its view, there was never any 'refusal' by the employer (Carter v Prestige Nursing Ltd).

48 hour opt-out

A requirement to sign an op-out before being offered overtime is not necessarily unlawful detrimental treatment. The EAT confirmed that it will not be detrimental treatment where the employer's aim is to take reasonable steps to ensure compliance with the 48-hour week (Arriva London South Ltd v Nicolaou).