Employment law SOS: holiday entitlement
1 min read
An employee has been on sick leave for three months. He still had half his holiday entitlement left for 2011/12 and asked if he can use the two weeks to boost his pay. We don't allow unused holiday to be carried over, but can he do this?
A key point you need to note here is that a payment cannot be made in lieu of statutory holiday entitlement unless it is on termination of employment. As such, it is unlawful for employers to pay workers for their holiday without them taking the time off.
However, following a recent decision by the European Court of Justice, employees who are absent from work due to sickness should continue to accrue holiday during this period. And where they are prevented from taking their full annual leave entitlement during any holiday year because of sickness, this should be allowed to be carried forward to the following year, regardless of what the company policy is.
Also, case law would indicate that employers should be reluctant to allow a worker who is off sick to take a holiday, because ultimately when a worker is off sick, they are recovering from poor health which means they can't make use of their holiday to reflect leisure and recreational time, which obviously holidays are intended for. So the safest advice is to allow holiday to continue to accrue while the employee is off sick and then let it be taken as paid time off when the employee is fit to return to work.
Of course, should the employee cease to work for you, the holiday time could be replaced with a payment in lieu.
