Sep 5, 2013

Holidays and long-term sickness

What happens when employees with long-term sickness absence accrue holiday leave?


There has been a lot of confusion regarding statutory holiday accrual for employees on long-term sickness absence. While we know that employees on sickness absence have the right to carry over unused annual leave for a reasonable but limited time, it is unclear if the employee has to request or if the leave should be automatically carried over to the next year by the employers.


There is now some clarity in this matter.  In Sood Enterprises Ltd v Healy 2013, Mr Healy who had been on long-term sickness absence for two years had not requested that his unused holiday be carried over from the first year. As he did not recover sufficiently to join back to work, he resigned. He did not receive any holiday pay for the period of his sickness absence.


The question before the Employment Appeals Tribunal was to decide whether under the Working Time Directive, the employer is required to carry over leave in the absence of an express agreement between the employer and employee. The EAT also had to decide whether under Working Time Regulations (WTR), the employee is entitled to 4 weeks or all of the 5.6 week’s holiday entitlement.


The EAT held that under Regulation 13 of WTR, 4 weeks of holiday should be carried over without the employee making a formal request. However, the remaining 1.6 weeks’ holiday cannot be carried over without an express agreement between the two parties. This is because the Working Time Directive which is an EU Regulation states that employees are entitled to a minimum of 4 weeks paid annual leave. The additional 1.6 weeks comes under the Working Time Regulations which is a UK regulation.


The case thus confirms that employees who are on long term sickness absence can carry over up to four weeks’ holiday without making a formal request to the employer.



Nitya Balaji – HR Advisor