Do sick workers lose the right to holiday accruing in a leave year if they don’t request to take it before the leave year ends?
Not according to a recent EAT decision.
A worker who is too ill to work is also to be presumed to be too ill to exercise the right to holiday. Holiday must therefore be carried over into the next holiday year if the worker does not use it. This will mean an extra burden on those employers who have been operating a “use it or lose it” policy, that is, if a sick worker does not make a request to use their accrued annual leave (and many don’t because they don’t know they can) then it would be treated as having expired at the end of that leave year.
One option employers may consider to try to mitigate the operational and financial impacts of this decision would be to require sick workers to take their accrued holiday during their sick leave; this would, for example, stop a worker from coming back to work after a year’s absence and taking two years worth of annual leave in a single year. However, this approach is not without risk. Whilst the Working Time Regulations do not expressly prevent this, EU law is against it and this may only extend the right to contractual sick pay (if the worker is in receipt of it at that time) and the worker may consider a claim for disability discrimination and/or constructive unfair dismissal (if they are an employee).
For a more detailed analysis of the case please click here. This will also be one of the many topics looked at in our Seminar on Absence Management which is taking place on 13 September 2011, please click here for further details.