There have been a number of recent cases dealing with the right for sick workers to carry over untaken holiday so where do they leave us?
Thursday 8 December, 2011
There have been a number of recent cases dealing with the right for sick workers to carry over untaken holiday so where do they leave us?
Ever since the ECJ decisions in Stringer and Pereda, we have known that workers on long term sick leave continue to accrue statutory holiday, that they do not have to take it whilst sick and that if they are unable or unwilling to take it in the current holiday year they must be allowed to carry it over. Questions which have remained unresolved include whether a worker must ask his employer if he can carry over untaken leave, or risk losing it, and whether the right to carry over continues indefinitely. Two recent decisions have shed light on these issues, whilst not resolving them entirely.
The ECJ in the case of KHS AG v Schulte confirmed that workers do not have the right to carry over untaken holiday indefinitely but was not entirely clear on how long the carry over period should be. Although the ECJ upheld a 15 month carry over period, the International Labour Organisation Convention on Annual Holidays with Pay allows 18 months and this was the period suggested by the Advocate General when he gave his opinion in this case. The Working Time Regulations will need to be amended so that carry over is permitted - the Government consulted on this in its Consultation on Modern Workplaces earlier this year but its suggestion at that point was only to allow carry over to the next year. It remains to be seen what period the Government will plump for now.
The ECJ decision also casts doubt on the decision in Adams v Harwich International Port Ltd where a one year limit on carry over was imposed by the EAT. The ECJ in Schulte said that the carry over period should be "substantially longer" than the reference period in respect of which the holiday is granted i.e. the holiday year.
The second decision is in the case of Fraser v South West London St George’s NHS Trust where the EAT held that a worker loses their right to carry over their untaken holiday if they do not inform their employer, during the leave year in which it accrues, that they wish to carry it over. This decision directly conflicts with the EAT decision in NHS Leeds v Larner earlier this year. That case has been appealed to the Court of Appeal which will hopefully resolve the issue once and for all.
