In last September’s newsletter we reported the European case of Pereda -v- Madrid Movilidad SA in which it was held that, in certain circumstances, holiday entitlement which was unused because the employee was on sick leave could be carried forward to the next holiday year. We also reported on the House of Lords decision in Stringer -v- HMRC in which it was held that holiday entitlement continues to accrue during periods of sickness absence.
It should therefore come as no surprise that the effect of these decisions has now worked its way into general employment law practice.
Updated guidance has been issued by Business Link and the issue has been considered by an employment tribunal in the case of Shah -v- First West Yorkshire Ltd. Mr Shah was due to take annual leave from 22 February to 21 March 2009. However, he broke his ankle and was off work from January until 18 April. He was paid holiday pay for the time when he was expected to have been on holiday rather than on sick leave. Mr Shah asked to reclaim his holiday entitlement but was told that the days had been “lost” because the new holiday year started on 31 March and it was Company policy that accrued but untaken holiday entitlement could not be carried forward.
Mr Shah took his complaint to the Leeds Employment Tribunal and won. According to Regulation 13(9) of the Working Time Directive (in its current but no doubt soon to be changed form):
Leave to which a worker is entitled under this regulation may be taken in instalments, but –
(a) it may only be taken in the leave year in respect of which it is due, and
(b) it may not be replaced by a payment in lieu except where the worker’s employment is terminated.
Following the lead in Attridge Law LLP -v- Coleman the Employment Judge took the bold step of adding words to the Regulation in order to give effect to the underlying thrust of the legislation:
I therefore construe Regulation 13(9) by adding at the end of Regulation 13(9)(a) words to the effect:-
“Save where a worker has been prevented by illness from taking a period of holiday leave, and returns from sick leave, covering that period of holiday leave, with insufficient time to take that holiday leave within the relevant leave year, in which case, they must be given the opportunity of taking that holiday leave in the following leave year”