Do you have employees off on long-term sick leave?
You manage to get employees back to work following long-term sickness and think that you are doing great. Then, they hit you with their holiday requests after a period of long-term sickness. Alternatively, you may have to look at dismissing but their holiday pay bill is rising rapidly and where does it stop?
Sickness and holidays seem to be common topics recently at the Employment Tribunals due to the amount of uncertainty that we still have over these subjects. However, the Employment Appeals Tribunal has very recently given us some more guidance about the carryover of holidays when an employee is off sick.
What seems to be the problem?
This is the question most of us face if we have to go and see the doctor. Well, here is the problem facing employers.
It is clear, and we have known for some time, that employees who are off on long-term sick leave are able to carry over their holiday entitlement into the next leave year if their sick leave has “prevented them from taking that holiday”.
What is classed as being “prevented from taking holiday”? Does the employee have to have made a request or not? How long can they carry holiday over? One holiday year? Five holiday years? Indefinitely?
The Employment Appeals Tribunal has recently given us some useful guidance on the above issues in the case of Plumb v Duncan Print Group Ltd.
The first issue was what does “prevented from taking holiday” mean? The Employment Appeals Tribunal made it clear that an employee who is off sick does not need to have made any request for a holiday. The fact that they are off sick is enough in itself to mean that they are “prevented from taking holiday”.
As with many medical conditions, there are bound to be complications. Despite this, employees are entitled to request holiday whilst off sick?
The second issue was how long can an employee’s holiday entitlement be carried over for? We have known for some time that this is not indefinitely. In a nutshell, the Employment Appeals Tribunal has said that you are only required to allow roll-over of holiday for 18 months (at the most). This means that if the leave year ended on 31 December 2014 and the employee had 10 days holiday remaining, they would have to use these or lose these by no later than 30 June 2016.
This is very welcome guidance as it does give us an end date to place on accrual and use of holidays for long-term sick employees.
The Employment Appeals Tribunal has given a relatively prescriptive answer to both questions: Employees do not need to request the leave, they will automatically be thought of as being prevented from taking it and unused leave only rolls over for 18 months, after that time it will lapse.
To help we have created a new holiday policy that deals with the above points and supporting guidance note which is now available in our Document Bank. If you would like any further advice on this topic or any other aspect of employment law, please do contact our Employment & HR team on 01332 340 211.