FAQ's - Employee on long term sick and holidays
Can an employee take holidays whilst on long term sick?
Following the Kigass case, it was held that the worker will be taking a 'rest period' within the meaning of Regulation 17 of the Working Time Regulations 1998. Regulation 17 provides that a worker cannot take a 'rest period' and a period of annual leave simultaneously, but can take advantage of whichever right is the more favourable. Regulation 17, therefore, allows a worker on long term sick leave to request that he or she be regarded as taking a period of annual leave rather than a period of sick leave. A worker, if he or she wishes to take annual leave under the Regulations, must simply give notice to his or her employer in accordance with Regulation 15. In order to be paid in respect of a period of holiday, a worker must have given notice to his or her employer under Regulation 15 of the Regulations that he or she intended to take leave, and such leave must have been duly taken.
If the holiday leave year ends whilst the employee is on long term sick, does he/she lose any untaken holidays or is it carried over?
A worker cannot carry over his or her statutory annual leave entitlement to the next leave year. Regulation 13(9)(a) Working Time Regulations 1998 provides that statutory annual leave may only be taken in the leave year in respect of which it is due. Thus, if a worker's holiday rights are confined to those which he or she is granted by the Regulations, he or she will forfeit his or her holiday by failing to take it in the relevant leave year. However, many workers have a right to carry over contractual holiday entitlement to the next year. This is a subjective test and will depend on the custom and practice of each company/business.
Contact
Judith Ellery Head of Employment
Angelina Rigby Partner
Bethan Southcombe Solicitor
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