Holidays for Sick Workers

In Adams v Harwich International Port Ltd, the employment tribunal ruled that workers who were unable or unwilling to take their statutory holiday entitlement because of sickness could carry over the full 5.6 weeks’ entitlement under the Working Time Regulations (WTR), but only to the next holiday year.  

Mr Adams was off sick from 9 July 2009 to 26 March 2010, an absence which spanned two calendar leave years.   Mr Hunwick was off sick between 26 January 2010 and 6 June 2010.  In November 2010, their union representative notified their employer that they wished to take holiday which had accrued during sick leave and asked whether it would agree to the holiday being carried over if it could not accommodate the dates requested.   The employer refused the request and they brought a tribunal claim, arguing that their employer had failed to allow them to exercise their statutory holiday rights.

The employment tribunal upheld their claims.  The employees had accrued annual leave whilst sick.  They could not be required to take leave whilst sick and if they were unable to take holiday in the current leave year because of sickness then it could be carried over to the next leave year.  However, holiday entitlement could not to be carried forward from year to year indefinitely.  There must come a point when delay between accrual of the holiday and taking it means that the purpose of the legislation (rest and recuperation from work) is defeated. 

The employment tribunal also decided that the right to carry over untaken holiday due to sickness applies to the full 5.6 weeks entitlement under the WTR and not just the minimum four weeks leave provided under the Directive.

The employment tribunal accepted that the WTR are incompatible with the Directive because they prohibit carry over but read words into the WTR to allow carry over to the next leave year in cases where leave remains untaken for reasons relating to sickness. 

Cases concerning the precise entitlement of workers who have been sick to take holiday and to be paid in lieu of untaken holiday on termination continue to trouble the courts and employers alike.   Employers will welcome the finding that there are limits on the length of time carry over should be permitted.  Although this is only a decision of the employment tribunal decision and so is not binding, the ECJ is due to rule on the extent of the right to carry over in the case of KHS AG v Schulte.  Earlier this year the Advocate General in that case gave an opinion that an 18 month limit on carry over might be appropriate.