Employees can reschedule holiday if they are sick

Employees can reschedule holiday if they are sick

Recent change in law

A decision of the Employment Tribunal last week has given workers who book holiday but are ill during it a right to reschedule that holiday, even if it means carrying over the holiday into the next leave year.

Until this recent decision the position was that private sector workers could not carry statutory holiday leave over into the next holiday year (nor could they usually be paid in lieu of it). It was essentially a “use it or loose it” scenario.

EU dimension

The European Court of Justice had previously said that under the Working Time Directive in EU law (which the Working Time Regulations 1998 are intended to implement in England and Wales) that a worker who is ill during a period of previously-scheduled statutory holiday leave can reschedule the holiday to a later date and if the worker remains sick until the end of the relevant leave year, the Directive requires him to be allowed to reschedule that holiday in the next leave year. However differences in the wording of our Working Time Regulations and the Directive have meant this has not been possible in England for private sector workers.

Now…

The Employment Tribunal case of Shah v First West Yorkshire Limited has changed this. In the Shah case the Tribunal has effectively added new wording into the Working Time Regulations to prevent the situation where workers would be deprived of taking sufficient holiday due to illness or incapacity because they were not allowed to carry it over to the next leave year.

Employers now need to ensure that they allow workers who are sick during pre-scheduled holiday leave to reschedule it, or even carry it over to the next year. Generally workers who have not been ill, still need to use their statutory holiday up in the correct holiday year, or they will loose it.

Huge Scope for Duvet Days?

The scope for abuse by unreliable staff is clearly vast, and therefore employers would be well advised to ensure that they have good systems in place for monitoring sickness absence, and for dealing with staff who misuse this new right, to gain extra time off work.

What to do

Check your contracts and handbooks to ensure they give sufficient powers and have strict procedures in place to minimise abuse and deal properly with dishonest employees who take advantage.  However always be careful with any disability related illness, and associated absences because of disability discrimination laws.

Victoria Young is an employment solicitor in the Employment Services Team at Blocks solicitors in Ipswich. She can be contacted on 01473 343922 or emailed at vy@blockslegal.co.ukThe above is general comment only and individual advice should be taken