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No need for sick employee to show inability to take leave

The Employment Appeal Tribunal has held that the European Working Time Directive does not require workers on sick leave to demonstrate that they are physically unable to take annual leave in order to carry over accrued unused statutory holiday to a subsequent leave year. It is sufficient that they are absent on sick leave and do not choose to take annual leave during that period.

The Working Time Directive is implemented in the UK by the Working Time Regulations 1998. This entitles workers to 5.6 weeks statutory leave which must be taken in the leave year in respect of which it is due. This comprises 4 weeks leave under the WTD and an additional 1.6 weeks under the WTR.

However, case law has since developed one exception to this rule whereby an employee who is absent from work sick and does not take holiday during their absence can carry unused statutory leave over in to a subsequent leave year.

In its judgment, the EAT also held that this right to carry over leave is not unlimited. Consequently, the Working Time Regulations 1998 should be read as permitting workers on sick leave to carry over their 4 weeks WTD leave and take it within a period of 18 months of the end of the leave year in which it accrues.

Employers should take comfort that employees who are absent from work for lengthy periods will not therefore accumulate a large entitlement over a number of years and that 18 months can reasonably be treated as the longstop date for any carry over. It will be up to employers how they wish to treat carryover of the additional 1.6 weeks or any contractual leave.

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