Sickness Absence and Holidays

July 08, 2016

Dispute Resolution

Sickness Absence and Holidays

There has been much legal argument on the interpretation of the Working Time Directive affecting Member States (we are still one) and the Working Time Regulations 1988 (our attempt to implement the Directive into UK law).  The WTD gives workers the right to 20 days statutory holiday entitlement each year. The WTR gives workers the right to 5.6 days paid holiday each year.  The entitlement is made up of 20 days normal holidays and 8 days public/bank holidays.

One of the main problems centres around how workers can achieve their statutory holiday entitlement (that is the 20 days provided by the WTD)  if they are off sick during such holidays, particularly bearing in mind that the WTR do not permit the carrying forward of holidays into a new year.

A summary of the presently established position is this:

  • Workers continue to accrue their statutory holiday entitlement (the 20 days) during periods of “sick leave” (shorthand for being unfit to work)
  • Where a worker is taken sick during a period of statutory holiday, that worker should be able to take the remaining holiday entitlement at a later time.
  • Where a worker has scheduled holiday dates with their employer and those dates coincide with a period of sick leave, the same principle applies; the worker should be able to take annual leave at a later time.
  • Where a worker has been on sick leave and has not had the opportunity to take their scheduled annual leave entitlement during the leave year that person has the right to carry forward their unused entitlement into the following year (despite what the WTR say).

The above is, of course, just a summary of the position and further advice will almost certainly be required in particular circumstances.

posted by Julian Freeland | July 08 2016