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Annual leave and sick leave


News

The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018,  changes the reference period in Reg. 16 WTR 1998. From 6th  April 2020, where a worker has been employed by their employer for at least 52 weeks, the reference period will be increased from 12 weeks to 52 weeks. Where a worker has been employed by their employer for less than 52 weeks, the reference period will be the number of weeks for which the worker has been employed.

The Government has announced proposals for a single labour market enforcement body which will have powers to enforce holiday payments.

See also How to make a claim for accrued Holiday Pay when you leave the job, How to make a claim if your employer won’t let you take leave, How to make a claim if your employer won’t pay you for leave you have taken, How to make a claim for breach of contract

Annual leave

Your entitlement to holidays and holiday pay is determined by your employment contract, subject to the minimum provisions laid down in Regulation 13 of the Working Time Regulations 1998 (WTR 1998). The Regulations apply to almost all workers and employees with the exception of those who are self-employed. Your employment contract can contain better provisions than WTR 1998. If they do, those conditions become a contractual right which you can enforce in the Employment Tribunal. Your statutory entitlement is not in addition to any contractual holiday entitlement, one is set off against the other and Regulation 17 says that you should take the entitlement that is more favourable.

There is no legal requirement for your employer to give you a written contract of employment, but they do have to provide a written statement of particulars of employment. S1 Employment Rights Act 1996 gives you the right to a written statement of terms and conditions of employment. This is called a Section 1 Statement. The Section 1 Statement must detail your holiday entitlement, including public holidays, and give sufficient information to allow any entitlement to accrued holiday pay on the termination of employment to be calculated precisely.


Carrying leave forward

Under Regulations 13 and 13A, you must take your basic four weeks’ annual leave in the leave year in which it is due. You can only carry the basic four weeks’ holiday forward if your contract allows it.  Some or all of your additional 1.6 weeks’ annual leave can be carried over to the following leave year if your employment contract allows it. This basically means that if you don’t take your annual leave, you will lose it. If your Employer is stringing you along and not allowing you to take your leave, you should give formal notice under WTR 1998.


Holidays and Sick Leave

The main rules about holiday entitlement during sick leave have been developed by three cases, which are Kigass Aero Components Ltd. V Brown [2002],  Stringer & Others v HM Revenue and Customs [2009] and Pereda v Madrid Movilidad SA [2009]. Your employment contract may have better terms and conditions than what has been established by case law, so check its provisions. The established principles would only apply to the 4 weeks leave and not the additional 1.6 weeks, and are as follows;

  • Your entitlement to annual leave under WTR 1998 will continue to accrue whilst you are on sick leave. This is because the entitlement arises from being a worker, not from your ability to work.
  • If sickness prevents you from taking all or some of your annual leave entitlement, it must be carried over into the next leave year.
  • On termination of your employment where you have been on sick leave and unable to take paid annual leave, you are entitled to a payment in lieu.
  • If you want to take annual leave whilst on sick leave you should write a letter to your Employer indicating which dates should be considered as annual leave. If you are receiving SSP, you should be entitled to your full pay for the periods of annual leave taken during sick leave.
  • If you are unable to take your booked annual leave because you have fallen ill, your Employer must allow you to take the leave at another date when you are better. This also applies to sickness whilst on holiday.
  • You have the option of taking your outstanding annual leave on your return to work if you want to.

Even though employment law says that annual leave must be taken in the year in which it is due and cannot be carried forward, case law has established an exception to this rule where a person is on sick leave and is unable or unwilling to take annual leave during the leave year. Normally if you are on long term sick leave, you can carry your annual leave (that you have not taken because of sickness), through to the next holiday year.  You can ask your employer to take the holiday during the sickness period (unless your employment contract says no). If you can’t take your leave because you are sick, or you decide not to take your leave, this case discussed below says that you have the right to carry your leave forward for up to 18 months after the end of the leave year in which your leave accrued.


Plumb v Duncan Print Group Limited

The Employment Appeal Tribunal has decided, in the case of Plumb v Duncan Print Group Limited  that employees on long-term sick leave are entitled to carry annual leave forward for up to 18 months after the end of the leave year in which that holiday accrued. To carry holiday forward, you don’t need to prove that you were too ill to take your holiday in the leave year that you were off sick.

In this case, Mr Plumb had been off sick since April 2010 due to an accident at work. He did not take paid annual leave for the 2010, 2011 and 2012 leave years. In July 2013 he asked to take all the annual leave he had accrued since 2010. His employer only paid him his leave for the year in which he requested it (i.e. 2013/14) and would not pay him for the leave he had not taken in 2010, 2011 and 2012 which amounted to 60 days. Mr Plumb was on sick leave until termination of his employment in February 2014 when he sued Duncan Print Group Limited for his accrued holiday from 2010 to 2012.   Duncan Print Group Limited provided evidence that between 2010 and 2011, Mr Plumb had been diagnosed with depression but he continued to work at B&Q for 12 hours on weekends and took a week’s holiday during 2012. Because of this the Employment Tribunal said that Mr Plumb could have taken his leave during the leave years and so he lost in the Employment Tribunal.

Mr Plumb then appealed to the Employment Appeal Tribunal (EAT) which said that the Employment Tribunal was wrong and had misinterpreted the law. The EAT said that an employee who is on sick leave does not have to demonstrate they are physically unable to take holiday by reason of their medical condition.  Since Mr Plumb had not asked to take annual leave while off sick, it had to be assumed he did not wish to do so, so he was entitled to carry over.

The EAT said that the wording of the Working Time Directive and EU case law provides that annual leave that has not been taken cannot be carried forward indefinitely and should be limited to 18 months after the end of the holiday year in question. The court ruled that Mr Plumb was entitled to pay in lieu of annual leave for 2012 but not for 2010 or 2011. On top of that, Duncan Print Group were ordered to pay Mr Plumb’s appeal fees of £1515.  Note that this ruling only applies to the 4 weeks (20 days) paid statutory holiday required by EU law. If you have more than 20 days holiday entitlement, your right to carry the remainder forward will be decided by the terms of your employment contract.


Updated: 04/03/2020

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