Holiday leave lost due to illness should be carried over to next year, tribunal rules

The first employment tribunal to test paid holiday and sick leave following two major court rulings last year has held that an employee should be allowed to carry over his annual leave entitlement to the next year where he has been too ill to take it.

In the case of Shah v First West Yorkshire, Mr Shah broke his ankle and was off work for three months between January and April 2009. He asked his employer if he could claim back four weeks’ holiday that he had previously booked, which fell within his period of sickness absence.

The company replied more than six weeks later, refusing the request.

A tribunal judge ruled: “Shah is entitled to take the holidays which he was prevented by ill-health from taking in March of 2009 at some subsequent time in the following leave year.”

The case follows two European Court of Justice (ECJ) cases last year, which ruled that in some circumstances, holiday entitlement should be allowed to be taken in the next annual leave year, despite the UK Working Time Regulations (WTR) specifying it is unlawful to carry over more than eight days per year per full-time employee.

In the case Pereda v Madrid Movilidad SA, the ECJ ruled that workers who fall sick while on holiday should be allowed to reschedule their leave, even it if meant within the next leave year. And earlier in the year, another case, Stringer v HMRC, ruled workers can accrue holiday pay while on sick leave, and that holiday should be allowed to be carried forward in such cases.

As the regulations specify that no more than eight days can be carried forward into the next leave year, employment lawyers had warned of a ‘grey area’ in the law until UK case law clarified the situation or the government amended the WTR.

While Shah v First West Yorkshire is not binding on other tribunals, it could indicate that employers wishing to follow best practice should change their policies to allow leave to be carried forward due to illness. Employers are not currently obliged to allow workers to carry any annual leave over to the next year.

John Read, an employment law editor at XpertHR, said: “The decision isn’t binding on other tribunals, but it’s an indication that judges are prepared to follow the approach taken in Attridge Law v Coleman, giving effect to EU law regardless of what the UK legislation says.”

A summary of the Shah v First West Yorkshire case is published on XpertHR.

XpertHR recent rulings summaries

XpertHR’s new employment tribunals page provides summaries of recent rulings, including this one, and full transcripts of the decisions. You can also follow new cases as they are added, using the XpertHR employment tribunals feed

Comments are closed.