Confusion surrounds the thorny issue of sickness absence and what happens to holidays while someone is off sick.

The basic position is that every worker has the right to 5.6 weeks annual leave under the Working Time Regulations (WTR). Workers on sick leave accrue annual leave and must be given the opportunity to take it – either during sick leave or at some other time, which allows for the possibility of a carry over of untaken leave.

It’s this potential for ‘carry over’ that causes concern. At the moment the WTR do not permit a carry over of annual leave at all. This means “use it or lose it”.

Recent European Court of Justice decisions on this have ruled otherwise and Tribunals here have had to be creative in order to follow these.

So if a worker is now permitted to carry over leave which he or she has been unable or unwilling to take concurrently with sickness absence, how long can the carry over go on for?

There is no straightforward answer to this yet. The ECJ considered that in the event of long term sickness absence it could be restricted to 15 months. This is helpful for employers concerned that the carry over of leave could go on indefinitely.

The situation is also complicated by the requirement that a worker must request leave to be entitled to take and be paid for it. There are conflicting views on this and a resolution is expected this year. Until then it seems sensible to assume a worker on sick leave still needs to request the leave, just as they would be required to do if at work.

To sum up:

1. Workers on sick leave accrue annual leave
2. This can be taken either during sick leave or at some other time
3. Workers should request the leave in the normal fashion to be able to take it and be paid for it
4. If the leave is not taken during the current leave year, a carry forward should be permitted.

It’s very much a case of “watch this space” but  we‘ll keep you posted on developments as and when they arise.

If you want to discuss this further, please contact the employment team.