Sickness absence and sick pay
In TSN v Hyvinvointialan Liitto Ry; AKT v Satamaoperaattorit Ry, the European Court of Justice (ECJ) held that, in the absence of domestic legislation or collective agreements to the contrary, workers on sick leave are not entitled to carry over any paid annual leave over and above the EU minimum of four weeks.
The European Court of Justice (ECJ) reiterated that if sickness prevents a worker from taking annual leave, his or her annual leave can be carried forward into the next holiday year. Bethan Odey summarises the case.
The Employment Appeal Tribunal has held that where an employee chooses not to take statutory annual leave during sick leave, he or she can carry forward the untaken annual leave for up to 18 months from the end of the leave year in which the leave arises.
In Sood Enterprises Ltd v Healy [2013] IRLR 865 EAT, the Employment Appeal Tribunal held that workers on long-term sick leave who have not taken their annual holiday entitlement may not carry over the additional 1.6 weeks' leave to which UK workers are entitled without an agreement to do so.
The Court of Appeal has held that an NHS worker who was absent for the whole leave year and who did not submit any requests for annual leave during her absence was entitled to holiday pay on the termination of her employment.
The European Court of Justice has confirmed that a worker who is sick during a period of annual leave cannot be precluded from taking the holiday at a time other than that originally scheduled, irrespective of when the incapacity for work first arose.
The European Court of Justice has held that German legislation allowing for a carry-over period for untaken holiday of nine months, with the result that public servants forfeit their leave if it has not been taken within the period of nine months after the end of the leave year because of sickness, is unlawful.
The European Court of Justice has confirmed that the Working Time Directive (03/88/EC) does not require an unlimited accumulation of a worker's paid annual leave during a period of long-term sickness absence.
The Employment Appeal Tribunal has held that employees on sick leave must, to be paid for holiday under the Working Time Regulations 1998, give the required statutory notice during the relevant leave year of their intention to take that holiday.
The Employment Appeal Tribunal has held that a worker absent for the whole leave year, but who does not submit a request for the annual leave before the leave year ends, does not forfeit his or her entitlement to paid annual leave.
Employment law cases: HR and legal information and guidance relating to sickness absence and sick pay.