No automatic carry over of holiday while sick

The issue of accruing and carrying over holidays while absent through long-term sickness has again been considered by the Employment Appeal Tribunal (EAT).

It recently handed down an important decision over the right to carry forward the additional eight days of annual leave — for someone who works a five-day week — under Regulation 13A of the Working Time Regulations where a member cannot take that leave during the holiday year because of sickness. This is the extra 1.6 weeks of paid leave that was added by the UK to the minimum four weeks’ paid annual leave under European law, from April 2009.

The claimant, Mr Healy, worked at a petrol filling station, but a stroke forced him off work for a year and a half, before he resigned. He claimed holiday pay for the whole period of his sickness absence, based on 28 days a year of statutory holiday. His contract gave him no right to carry forward unused holiday into the next holiday year.

The EAT said that unlike the minimum entitlement under European law to 20 days’ annual leave, the extra eight days’ holiday awarded under UK law cannot be carried forward into the next holiday year, except by an agreement between the parties.

This means that where a member is on long-term sick leave, only the minimum four weeks of unused holiday carries forward automatically into the next holiday year.

Sood Enterprises v Healy [2013] UKEAT 0015/12/BI/1403

www.bailii.org/uk/cases/UKEAT/2013/0015_12_BI_1403.html