Sick workers entitled to accrue holiday |
|
|
| Management | |
| Written by Nicole Tovey, Solicitor, Buss Murton. | |
| Wednesday, 25 February 2009 | |
|
Nicole Tovey looks at a new European Court case on sick leave entitlement and its impact on employers. Recession-battered employers have been dealt yet another blow by Europe, in the long-awaited ruling in Stringer v HMRC (previously Ainsworth). The decision, which now clarifies the law after several years of confusion, confirms that employees are entitled to accrue all of their statutory holiday entitlement whilst on sick leave regardless of duration. Sick leave must either be carried forward to when the employee returns to work or they must be paid in-lieu of holiday if their employment terminates. BackgroundThe UK had argued that employees on sick leave should not be entitled to paid holiday, as they are not actually working and so there is no “work” for them to take leave from.The European Court of Justice ECJ, however, distinguished between holiday entitlement and sick leave, stating that one type of leave cannot and does not displace the other. The purpose of sick leave is to enable a worker to recover from an illness, whereas paid annual leave under the Working Time Directive allows for a period of rest and enjoyment. The case will now return to the House of Lords who will have to consider the decision and provide guidance as to how it should be interpreted into UK law. Implications for Kent employersUnder the Working time Regulations 1998 full time employees are entitled to 24 days paid leave each year and public holidays count towards their total entitlement.From 1st April this will be extended to 28 days paid leave. Those working part-time are entitled to the same level of holiday pro rata and employees can start building up holiday as soon as they start work The ECJ’s decision is likely to have serious implications for employers, who may now face tribunal claims from employees seeking to carry leave over. Those presently on sick leave may also request holiday pay for the current leave year, in order to help with their financial situation. It has been left to member states to decide whether an employee can actually take leave or accrue it during a period of sick leave and any claims are likely to be stayed pending the House of Lords ruling. The cost to employersSickness absence already costs the UK economy an estimated £13 billion every year, with each day taken costing an employer between £138 and £156.In the wake of the ECJ’s ruling, employers should now consider amending contracts of employment, to ensure that holiday entitlement beyond the statutory minimum does not continue to accrue during extended sick leave and that it is not paid on termination. It is also vital that employers carry out a full review of sickness and holiday policies and that sick leave is managed properly and effectively. Where an employee is on long term sick leave the practicalities of a return to work should be investigated fully, and health assessments carried out or reasonable adjustments made if considered to be appropriate. Employers should be proactive in deciding at what point employment should be terminated. Those who fall quietly under the radar could easily rack-up a significant amount of holiday entitlement, leaving employers open to financial liabilities in what is already a difficult economic time. Nicole Tovey is a solicitor in the employment and litigation team at Kent solicitors Buss Murton. Comments (0)
 Post a comment
|
|
digg 
del.ico.us 
Newsvine 
Reddit 
Furl 
technorati 
Subscribe to this comment's feed
