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‘Holiday leave lost to illness to be carried over’ rules tribunal

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Following two major court decisions, the first test of whether holiday leave can be carried in to the next year after illness has been agreed upon by a Yorkshire employment tribunal.

The case of Shah v First West Yorkshire saw an employee challenge the Yorkshire-based travel company after he was denied a request to carry over his holiday leave upon breaking his ankle.

Mr Shah took three months leave between January and April 2009, during which he had already booked four weeks holiday. He asked his employers if he could claim this holiday back but was denied several weeks after filing the request.

However, the tribunal judged that the employee was entitled to “take the holidays which he was prevented by ill health” at a “subsequent time in the following leave year”.

In 2009, the European Court of Justice (ECJ) ruled that in certain circumstances holiday leave may be transferred to a following year, despite UK Working Time Regulations (WTR) stipulating that no more than eight days can be carried over by each employee.

Following such rulings, the Department for Business Innovation and Skills (BIS) has published guidance on holiday and sick leave entitlement.

The guidance states:

• a worker continues to accrue their statutory annual leave as normal while absent from work due to sickness, however long the period of sickness lasts;

• a worker on sick leave is entitled to take statutory annual leave at the same time and if they do, they must be paid their normal holiday pay rather than company sick pay for the days taken as annual leave;

• if the worker qualifies for statutory sick pay (SSP), this will continue to be paid during the annual leave but would count towards any holiday pay that is paid;

• a worker can choose to have annual leave changed into sick leave if they become sick while on annual leave or just before they are due to take annual leave and can arrange to take the annual leave at another time.

The guidance advises that in those circumstances the employee would be on sick leave. As such, employers may want to consider requesting evidence of their absence in line with their usual company sickness-absence procedures.

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Written by Andrew Hodges

February 26, 2010 at 12:14 pm

Posted in Comment, LinkedIn

Tagged with , ,

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