Fans of the Working Time Regulations 1998 (SI 1998/1833) will know that there are long-running issues over the interaction of holidays and sickness absence. A particular problem is whether or not employees who are unable to take statutory holiday due to sickness absence can carry over that holiday into the following leave year.
Although we await a definitive answer, an employment tribunal has held that the Regulations can be interpreted in light of the European Court of Justice decision in Pereda v Madrid Movilidad SA (external website) - meaning that the claimant, Mr Shah, could carry over his holiday.
This involved the tribunal adding (for the purposes of the case) an extra paragraph to reg.13(9) of the Regulations, which as drafted prevents the carry-over of holiday. The decision isn’t binding on other tribunals, but it’s an indication that judges are prepared to follow the approach taken in Attridge Law v Coleman (Microsoft Word format, 135K) (external website), giving effect to EU law regardless of what the UK legislation says.
Holiday claims aren’t usually worth the expense of an appeal, so it may be a while before we get an appellate decision on the issue of carry-over. However, BIS has published new (albeit rather general) guidance on sick leave and holidays (external website), and confirmed to me that its recently announced consultation on the matter is likely to take place this summer over 12 weeks.
The consultation follows the disappointing House of Lords decision in HM Revenue and Customs v Stringer (external website) last summer, which - to the irritation of HR professionals everywhere - failed to resolve many of the issues concerning holidays and sick leave.
XpertHR’s new employment tribunals page provides summaries of recent rulings, including this one, and full transcripts of the decisions. You can also follow new cases as they are added, using the XpertHR employment tribunals feed.
For more information on key cases mentioned in this blog, subscribers can access XpertHR’s cases database, which provides wide coverage of precedent-setting cases from the Employment Appeal Tribunal and appellate courts, including:
- Pereda v Madrid Movilidad SA Annual leave: National law must not prevent employees from taking leave at later time if sick during allotted leave period.
- EBR Attridge Law LLP v Coleman Disability discrimination: EAT construes Disability Discrimination Act so as to prohibit associative discrimination.
- HM Revenue and Customs v Stringer Holiday pay: Unpaid holiday pay can be claimed as unlawful deductions from wages.
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