How many of you have employees off on long-term sick leave? If you manage to get them back to work you think you are doing great but 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?
Well, sickness and holidays seem to be the flavour of the month recently at the Employment Tribunals. I suspect this is due to the enormous amount of uncertainty that we still have over these subjects. However, the Employment Appeals Tribunal (EAT) has very recently given us some more guidance about carryover of holidays when an employee is off sick.
In light of the medical flavour of this week’s conundrum, I have decided to take on the role of Doctor Cooper in order to explore the problem, provide my diagnosis and treatment to prevent repeated confusion…
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 the problem is for 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”.
But, what is classed as being “prevented from taking holiday”? Does the employee have to have made a request or not? And how long can they carry holiday over? One holiday year? 5 holiday years? Indefinitely?
The EAT 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? Well, the EAT made it clear that an employee who is off sick does not need to have made any request for holiday. The fact that they are off sick is enough in itself to mean that they are “prevented from taking holiday”.
Quite simple really. But as with many medical conditions there are bound to be complications… this does fly slightly in the face of the fact that employees are entitled to request holiday whilst off sick?!
The second issue was how long can holiday be carried over for? We have known for some time that this is not indefinitely. The EAT have usefully provided more guidance for us here…
In a nutshell, the EAT have 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 I had 10 days holiday remaining, I 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 EAT have 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.
You may be minded to update your policies and procedures at this stage….I would not be too hasty. As with many medical issues, being referred for a second opinion, this case has been given leave to appeal to the Court of Appeal….let’s just hope that the Court of Appeal’s waiting list is not as long as that of a consultant!
In the meantime, this is good law and in my view provides us with much needed guidance.
To help we have created a new holiday policy that deals with the above points and supporting guidance note which are now available on our website. If you would like any further advice on this topic or any other aspect of employment law, please do contact the team.