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Update for educational institutions: Falling ill during a holiday?

After our news update in June 2012 regarding school employees who fall ill during their holiday, we received a number of questions from schools as to how this might impact on them.

Our update focused on the recent decision by the European Court of Justice (ECJ) which stated that a worker who was sick during a period of scheduled annual leave should have been entitled to take their holiday at a different time. It was also decided that where a worker was unable to take that annual leave before the end of the leave year they should be able to carry that leave over to the following holiday year.

Below we have shared our responses to your questions. Should you have any additional questions, please do not hesitate to contact a member of the team.

  1.  How does the ECJ’s decision affect teaching and other classroom-based staff who are not allowed leave outside set school holidays other than for special and unforeseen circumstances? According to the ECJ’s decision, employees are entitled to a minimum of 4 weeks holiday per year (UK law provides for a longer period of 5.6 weeks per year, this is known as the minimum statutory entitlement). As long as staff are able to take their minimum statutory entitlement for leisure and relaxation at some point during the holiday year, this will satisfy the requirements.
  2. If a member of staff is ill during half term or the summer holidays are they allowed that time back or financial payment? Those employed in schools (like all other employees) have an entitlement to 5.6 weeks of statutory annual leave, pro-rated where appropriate. This is not in addition to the current school closure arrangements but rather reflects the bare minimum entitlement. In practice, this means that the entitlement to the statutory minimum entitlement can be offset against any periods of school closure, whether they occur before or after the period of sickness. Where a member of staff has been ill during school holidays, as long as they are able to take their minimum statutory entitlement at another period of school closure, schools do not need to allow employees to take additional time off during term time. There is no entitlement for employees to be paid in lieu of annual leave unless their employment terminates and they have outstanding accrued leave.
  3. The cases refer to “scheduled holiday”. What would this refer to in the school context? This refers to any period of annual leave that the employee planned to take had they not fallen ill. Therefore, for those employees working term time only, all school closure days are likely to be considered to be scheduled holiday as they are pre-planned. However, it is only where an employee is not able to take their minimum statutory entitlement that they should be given the opportunity to take it at another time.
  4. If a member of staff is away from work due to a long-term illness are schools now obliged to carry over their unused leave to the next holiday year if there are not enough school closure days left in the year to take it? According to the recent cases, if a member of staff has not been able to take their minimum statutory entitlement (5.6 weeks) during a year then they should be entitled to carry this over to the following year. Given the length of school holidays, it is likely that any days carried over would still be accommodated within the usual school holidays in the following year without having to allow any extra days off.
  5. If a member of staff was off sick for a whole year, would they be entitled to take 2 years’ worth of school holidays the following year? No. The recent decisions from the ECJ refer only to employees’ minimum statutory entitlement. Therefore, even if a member of staff has been off due to sickness absence for the entire leave year, they will only be entitled to carry over their minimum statutory entitlement to the following year.
  6. How does the ECJ’s decision affect those employees that are not employed by the local authority? The ECJ’s ruling will apply directly to those working in the public sector. Therefore, employees directly employed by the local authority can rely on these cases. However, for those who are not (those employed by the Governors, Trust etc.) it is difficult to say with any certainty what impact the ECJ’s decision will have. However, recent Employment Tribunal decisions involving private sector employees have been interpreted in a manner consistent with the ECJ’s decision. Although previous Employment Tribunal decisions are not binding, they are persuasive and so it is likely that private sector employees will also be entitled to the same holiday rights as those employed by the local authority.

If you have any questions or concerns, please contact our Employment & HR team on 01332 340 211.

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