Employee entitled to take annual leave accrued while off sick

The Employment Appeal Tribunal (EAT) has provided a ruling clarifying how long an employee is entitled to wait before taking annual leave accrued while he was off work due to illness.

The case involved an employee who had been absent on sick leave from April 2010 until his employment ended in February 2014.

In July 2013, he requested leave accrued since 2010. The employer refused his request in relation to 2010 to 2012. The employee then sought payment in lieu for those years.

The tribunal ruled against him because it was not satisfied that he had been unable to take annual leave because of his medical condition.

The employee appealed. The issues were whether an employee on sick leave was required to establish that he was not able to take annual leave because of his medical condition, or whether it was sufficient that he had not chosen to take annual leave when on sick leave.

The other question was whether there was any limitation on the period for which an employee could carry forward annual leave.

The EAT held that under the Working Time Regulations, an employee absent on sick leave was not required to demonstrate that he was physically unable to take annual leave because of his condition.

Sick leave was intended to enable an individual to recover from illness. Annual leave was intended to enable a worker to enjoy periods of rest and relaxation for health and safety reasons. It would not be consistent with the underlying purposes of those rights to compel a person who was absent from work through sickness to take annual leave at the same time.

The EAT then identified that the real underlying concern in law was that an employee should not be able to accrue annual leave over a number of years and then seek to take that leave many years later when it no longer reflected the aim of ensuring a period of rest and relaxation.

It held that at most, EU and UK employment law required that employees who were on sick leave could take their annual leave within 18 months of the end of the leave year in which it was accrued.

The employee in this case was therefore entitled to payment in lieu for the leave accrued in the third year of his absence through sickness. He was not entitled to payment for annual leave accrued and not taken in the years prior to that.

Please contact John Carter if you would like more information about the issues raised in this article or any aspect of employment law.