Last year we reported the ECJ decision to allow a worker who is on sick leave during a period of pre-booked annual leave to reclaim that annual leave and take it at another time, potentially carrying the entitlement over to a subsequent leave year if necessary.

However, the case was in direct conflict with the UK Working Time Regulations which do not allow the carry over of leave. Although public sector employers had to have regard regard to the direct effect of ECJ decisions, private sector employers were entitled to operate in accordance with the domestic Regulations.

A Tribunal has now dealt with this dilemma and concluded that the domestic Regulations should be interpreted in accordance with the ECJ decision and that employees should therefore be allowed to take annual leave at a different time, including in the following leave year, if necessary.

The case concerned an employee who broke his ankle before his pre-arranged 4 week holiday. He remained on sick leave until after the holiday year had ended and was therefore unable to re-arrange his entitlement to be taken during the current holiday year. It was deemed necessary to carry over the leave to the next leave year.

The decision is only a Tribunal decision and is not therefore binding on other Tribunals. However, it will be persuasive and it is likely that further Tribunals will adopt this approach. Employers could face requests for lengthy periods of annual leave from employees returning from long term sick leave and costly payments for accrued but untaken holidays due upon termination of employment for employees who fail to return. Robust absence management will be crucial in the future.

Posted: February 19th, 2010 under Employment/HR.
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