Employment eBulletin August 2010

Holiday: employees on long term sick leave

Do employees accrue holiday whilst on long term sick leave?

Yes. The ECJ confirmed in the case of Stringer that workers on sick leave continue to accrue holiday rights.

Do employers have to let employee’s take holiday whilst on sick leave?

If the employee asks to take holiday, the request is denied and they do not have the opportunity to take this holiday before the end of the holiday leave year, it is likely that the employee will have a claim for holiday pay for the year concerned. Employers can therefore choose to roll the holiday over to the following year or make a payment in lieu of accrued but unused holiday for that leave year to avoid the employee having a successful claim. If the employer refuses to take either of these steps, the employee could make a claim for holiday pay. Employees would be advised to make this claim within 3 months less one day from the last day of the holiday year to ensure they are in time. However, employers are warned that Tribunals may still accept such claims at a later date if the employer has refused such a request.

What happens if an employee is off sick for over one year, they do not request to take holiday and the employer does not make payment of such holiday?

In the recent case of Khan v Martin McColl, Mr Khan, as a result of a TUPE transfer in 2007, was permitted to roll over two weeks holiday he had accrued in 2007 to the 2008 holiday leave year with the new company. He was then off sick from May 2008 until he resigned in August 2009. He took no holiday from the time of the transfer up until he went on sick leave and took no holiday during his sick leave. There was also no entitlement to roll over holiday from 2008 to 2009.

The employer paid Mr Khan his accrued but unused holiday for 2009 but did not make payment for the two weeks carried over from 2007 or the holiday accrued in 2008. The Tribunal decided that as Mr Khan had not requested the holiday (despite him not knowing he was able to make such request), the employer was unable to grant a request for holiday. Therefore, if Mr Khan had wanted to take the holiday or receive payment for the holiday accrued in 2008 together with the two weeks holiday rolled over from 2007, he would have had to have either requested the holiday be rolled over to 2009, take the holiday in 2008 or have made a claim before 30 March 2009 (3 months less one date after the last day of the holiday year). As he had not done any of these things except for issuing a claim but at a later date, his claim was out of time. If the employer had permitted holiday to be rolled over, the rolled over holiday would have had to have been paid.

Myth of the month: health and safety executive bans bunting at summer parties

The Reality

There are no regulations banning people from hanging bunting at summer parties.  However, the HSE encourages people to have a common sense attitude to risk rather then to make everything risk-free.  For example, hang or place any decorations where they cannot be tripped over, ensure decorations are not placed near fire hazards, be careful when using step ladders to hang decorations and do not overload electrical sockets!

The employment department at Wright Hassall produce a monthly eBulletin. If you would like to recieve a copy please email Caroline Venuto.