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Sick workers can carry-over holidays – but for how long?

We’ve known for some time that:

  • Workers on sick leave continue to accrue statutory holidays.
  • Workers can choose to take paid statutory holidays during sick leave.
  • But you can’t force workers to take statutory holidays during sick leave: if they are unable or unwilling to do so, they must be allowed to take them on their return to work, even if this means carrying the leave over to the next holiday year.
  • Workers don’t need to request carry-over for this to be effective.
  • There can be a limit on the length of time over which statutory holiday can be carried-over.

The Employment Appeal Tribunal (EAT) in Plumb v Duncan Print Group Ltd has now given its opinion on some additional issues:

  • If employers don’t include a limit (for example in their policy or employees’ contracts), can workerscaravan carry-over for an unlimited time? The EAT thought not. It held that, in light of European case law, a limit should be read into UK legislation.
  • What should the limit on carry-over be? The EAT thought 18 months. So, if a worker has been unable or unwilling to take statutory holiday in the relevant holiday year because of sick leave, they can carry it forward, but must take it within 18 months of the end of the relevant leave year. The EAT noted that a shorter carry-over limit may be justified in some circumstances (15 months in one European case) although the carry-over period must be ‘substantially’ longer than the leave year.
  • Does a worker need to have been physically unable to take statutory holiday because of their sickness in order to benefit from carry-over? The EAT thought not. They can carry it over if they were unable to take it, or if they chose not to take it, due to sick leave.

The EAT has given the parties in Plumb permission to appeal its decision, but it remains to be seen whether they will do so.

Sickness and holiday carry-over in practice

Even although the EAT did not consider it necessary for employers to specifically state a limit on carry-over, it would be prudent to include this in your sickness absence policy. In light of the present case law, an 18-month limit is likely to be acceptable. A shorter period of 15 months was justified in one case, but if you are considering anything less than 18 months we would recommend that you discuss this with us.

The position described above on sick leave and carry-over applies only to the minimum four weeks’ leave provided under European law, and not to the additional 1.6 weeks’ leave under UK law, or any additional contractual leave you offer over and above an employee’s statutory leave.

Government proposals

The government proposed to amend the Working Time Regulations to clarify the position on holidays and sickness absence back in 2011, but the proposals have never been taken forward.

kerrie-blog-sign-offKathleen Morrison Brodies LLP

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