Recently, in the case of Sood Enterprises v Healey, the EAT ruled that employees are only entitled to automatically carry over their four weeks’ basic holiday allowance guaranteed under the European Directive, rather than the 5.6 weeks they are entitled to under the Working Time Regulations (WTR).
In this particular case, Mr Healey suffered a stroke and was off work from July 2010 to June 2011, until he resigned from his employment due to ill health. Mr Healey requested payment for holidays he accrued during his period of absence which he had been unable to take due to his illness.
Under UK law the WTR give employees an additional 1.6 weeks’ leave on top of their four weeks’ basic allowance guaranteed under the European Directive. In accordance with recent European and UK case law, the EAT agreed that the claimant was automatically entitled to carry over accrued but untaken holiday entitlement while off on long-term sick leave.
However, the EAT held that unlike an employee’s basic allowance, the additional 1.6 weeks’ annual leave cannot be carried over unless there is an agreement in place between the parties. As Sood Enterprises were disputing that Mr Healey was entitled to such payments, the EAT held that there was no agreement in place, and as such Mr Healey was not entitled to carry over the additional 1.6 weeks’ annual leave. Mr Healey was only entitled to carry forward the minimum entitlement minus any holiday actually taken.
Employers should bear this in mind when dealing with any employees who have been off on long-term sick leave. Unless agreed otherwise, only the employee’s basic four week holiday allowance automatically carries forward.
In these circumstances, employees are not entitled to carry forward the full 5.6 weeks’ unless an employer is agreeable to them doing so. If not and an employer objects, or there is no written agreement in place to the contrary, then all the employee is entitled to carry forward (or alternatively be paid for) is their 4 week basic allowance guaranteed by the European Directive.
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