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Holiday and Sickness
The Working Time Regulations 1998 (“WTR”) are designed to ensure that all workers take and are paid for holidays. The current holiday entitlement for full time workers is at least 5.6 weeks paid annual leave each holiday year. This can include bank holidays. A worker’s contract of employment can provide for more holidays, but cannot provide for less than the statutory minimum. Part time workers are entitled to the same amount of holiday on a pro rata basis (i.e. 22.4 days for a 4 day week).
The rules only apply to “workers” and not to genuinely self employed contractors.
Holiday entitlement when a worker is off long term sick
European case law has long held that worker’s rights to holiday leave accrue whilst they are off work on long term sick leave. The problem was the discrepancy between European law, which allowed an employee to choose between taking holiday leave whilst off sick or rolling it over into the next holiday year, which is contrary to the WTR.
In Frazer v South West London St George’s Mental Health Trust  IRLR 100 The Employment Appeals Tribunal held that a worker could only take paid holiday whilst off work due to long term sickness only if a request had been made under Reg 14 WTR (which required notice of twice the period of leave requested) or if the worker does not wish to take holiday during their sick leave, asks for leave to be postponed until after the return to work.
As the law currently stands, if the appropriate notice is not given, a worker will be unable to carry over holiday and is not entitled to be paid in lieu of holiday.
Is the employer obliged to notify the worker of the legal position? Not according to the Frazer case where it was said that there was no implied duty on the employer, as the obligation to give notice arose as a matter of general law (the WTR) and not because of any contractual requirement.
Holiday entitlement when a worker is sick whilst on holiday
Again, the European court has long since said that workers who are sick whilst on holiday are entitled to take their holiday at a different time.
Anged v Fasga has recently confirmed that this is the case. This Spanish case concerned the interpretation of Article 7(1) of Directive 200388EC decided that the Directive must be interpreted as precluding national provisions under which a worker, who becomes unfit for work during a period of annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work. Countries cannot opt out. Annual leave and sick leave have different purposes, ad it would be contrary to the purpose of holiday leave to grant the right to leave only if the worker was already unfit for work when the holiday commenced.
Conflict with European Law
It is intended that the legislation be amended to bring the law into line with European law. Proposals are now before Parliament in the Enterprise and Regulatory Reform Bill. One proposal is that only 4 weeks holiday can be carried over (which complied with the European Directive) and that the remaining 1.6 weeks holiday (assuming a full time worker) will be lost if not taken within the holiday year.
Watch this space!
If you want to discuss any employment issues please contact Janet Long on her direct dial 020 3254 1435 of by email at email@example.com
The contents of this article are intended for general information only. It is not a substitute for legal advice, and shall not be deemed to be or constitute legal advice. We therefore cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. We will, however, be pleased to advise you on the specific facts of your case.