Latest Ruling on Holidays

A series of landmark decisions have been made in recent years focusing on the rights of workers on long term sick leave to holidays and holiday pay.  The EAT was recently asked to consider the specific issue of whether or not an employee should lose his right to holiday pay unless he can demonstrate an inability to take holiday.  The employee in this case suffered an accident at work and was absent for some four years.   Towards the end of this period of sick leave, the employee requested to take all his accrued holiday from the start of his absence.  The employer agreed to pay for the current leave year but refused to pay any additional sums.

Following a claim brought by the employee, the Employment Tribunal focused on whether the employee had an inability to take leave during his absence.  The Tribunal considered previous cases where, for example, an employee had suffered a heart attack and where an employee was considered too ill to take leave.  In those circumstances, the right to accrued leave was preserved because the employee was unable (because of a medical condition) to take holiday.  In the case before the Tribunal here, the employee had shoulder surgery, but this did not prevent him from taking leave and so the claim was rejected.

The case was appealed to the EAT who overturned the decision.  It ruled that there was nothing in the Working Time Regulations or in European Case Law which requires an employee to show an inability to take leave.  The very purpose of annual leave is to enjoy periods of rest and relaxation and not to recover from illness.  Requiring an employee to demonstrate that they are too unwell to take leave puts too much of a burden on them and also removes the element of choice, which they have to take leave under the Working Time Regulations.

The case also set another important precedent which is that any leave accrued must be taken within 18 months of the year that an employee was unable to take it.  This prevents unlimited carry over of holidays and provides at least some comfort to employers.  Otherwise, the ruling confirms that there is added protection now for employees who are on sick leave and who wish to accrue and preserve their annual leave entitlement.