Holiday Leave and Long Term Sick
There has been a recent EAT decision which has provided clarification surrounding long term sick leave and holiday pay.
It is accepted that a full time employee is entitled to 5.6 weeks holiday per year as stipulated in the Working Time regulations. It is also accepted that you are entitled to holiday pay (and accrue it) whilst off sick if you so wish. Now normally an employee will probably be only off sick for a few days at a time and so they would wish to save their holiday for other opportunities.
If however the employee is on long term sick (but still accruing holiday in line with statute) the question stands at what point will they gain their holiday pay. The EAT in the case of Fraser v Southwest London St George’s Mental Health Trust have put forward that if:
-you are on long term sick you must request annual leave in order to be entitled to it during the year.
-your contract terminates early then you are only entitled to the holiday that you have accrued in that holiday year. Accrued holiday does not carry forward to the next leave year with regard to payment in lieu entitlement if they fail to request such leave.
-the employer is not under a duty to inform the employees that it operates in this manner.
John is on long term sick. In the previous leave year whilst he was off sick he failed to request his annual leave in accordance with the Working Time Regulations.
In the current leave year he is now trying to claim for the holiday pay from last year, however because he failed to request the annual leave he is not entitled to recover it.
There is however a grey area with regard to annual leave if you request it but then requests a deferral until they are well enough to return to work. If they are not well enough to return before the end of the year then there is a possibility that the employer might be required to carry the holiday over to the next year.
Then if employment has been terminated before this holiday has been taken there is a distinct possibility that they will be entitled to the holiday pay in respect to the leave they have carried forward.
This however has not been confirmed in the courts yet and until one has been heard in the EAT or higher it is going to remain shaky ground.
What is made abundantly clear in the judgment of Fraser is that if the correct procedure is not followed in line with the Working Time Regulations then it is unlikely that the employee will be entitled to this pay.
This may seem strict however the EAT have backed it up by stating that it is in-line with European Case law regarding sick leave and holiday pay entitlements.
If you have been on long term sick and have requested annual leave but your employer is failing to provide holiday pay you may have a claim that can be taken forward. Please do not hesitate to contact us on [phonenumber] where one of our professional team will be more than happy to take the details of your case and advise you further on whether your case could be taken forward on a no win no fee basis.