This issue has come before the EAT again. See our previous blog post here. What happens to the annual leave entitlement of an employee who is ill-health absent if they don’t ask to take it before the end of the leave year?
It is now settled law that a sick employee can request to take annual leave during sickness absence. The ongoing debate has been around what happens to accrued annual leave if the employee does not ask to use it before the start of a new leave year. The Working Time Regulations say that statutory annual leave cannot be rolled over and the EAT has now confirmed that the ‘use it or lose it’ principle does apply to the sick employee. If the absent employee does not request to take their annual leave during their absence (or to be permitted to carry it over) then at the end of that leave year it is lost. Furthermore, employers do not need to make employees aware of the need to be proactive to avoid losing the entitlement.
However whilst this case goes a long way in clarifying an issue which had been the subject of conflicting case law, submissions in it were made before the recent EAT case where it was held that an employee too ill to work was presumed to be too ill to take annual leave and therefore the entitlement was not lost . That argument was not run in this case and therefore must remain a possibility. The EAT also kept another door open for employees by referring to the choice of the employee to take their annual leave or ask for it to be deferred – however allowing the employee to ask for the annual leave to be deferred brings us right back against the Working Time Regulations’ prohibition on carry-over.
We’ll soon be back at the EAT seeking a new prescription.