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Sickness during holiday

Posted on 26th March 2010
Case law

An employment tribunal has ruled that the Working Time Regulations can be interpreted to permit the carry over of holiday from holiday year to holiday year where holiday cannot be taken due to sickness.

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Shah v First West Yorkshire Ltd

The Leeds Employment Tribunal in this case ruled that the Working Time Regulations can be interpreted to permit the carry over of holiday from holiday year to holiday year where holiday cannot be taken due to sickness absence.

In reaching its decision, the employment tribunal concluded that the WTR prevented the carry over of holiday from holiday year to holiday year "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, [he or she] must be given the opportunity of taking that holiday in the following leave year".

The decision follows a number of decisions which we have previously reported: Can a sick worker really go on holiday?Sickness absence and paid annual leaveFailure to pay statutory annual leave is a deduction from "wages" and Right to defer holiday until after sick leave.  There are also some later articles Sickness absence and the entitlement to payment on termination of employment for untaken holidayEntitlement to statutory holiday pay is lost if not requested by employee on long-term sick leave and Holidays and sickness absence.

In practice

Whilst the ruling is not binding on other employment tribunals, it does suggest how other employment tribunals could deal with the issue. We expect Government to begin consultation on changes to the WTR this year. In the meantime public sector employers must allow employees to take holiday where they have been prevented from doing so due to illness even if this means carrying over holiday into the next holiday year and as a result of this decision, private sector employers should give serious consideration to allowing carry over as well. 

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