Holiday accrual during long term sickness

The saga of holiday accrual during periods of long term sickness seems to be never ending, and is a topic we have reported on many times.  What was thought to be the final episode in the long running saga was the ruling that employees do accrue holidays during periods of long term sickness and are entitled to be paid each year for their annual entitlement.

Whilst this ruling has not changed, and is unlikely to ever do so, a new case of Sood Enterprises V Healy has confirmed the amount of holidays to be paid.  Employers may recall in 2009 the statutory minimum holiday entitlement increased to 5.6 weeks (28 days for employees working 5 days or more), which was an overall increase of 1.6 weeks from the 4 week entitlement allowed under the Working Time Regulations 1998.

Mr Healy was off work sick for a year and a half when he resigned and claimed outstanding holiday pay of 5.6 weeks.  The EAT held that unlike ‘ordinary’ annual leave, provided for by Regulation 13 Working Time Regulations 1998, additional annual leave, provided for by Regulations 13A Working Time Regulations, cannot be carried over unless there is an agreement in place between the parties, which there was not, and it would be most unusual for an employer to have such a rule in place.

Therefore when an individual is on long-term sick leave, only 4 weeks’ annual leave carries over automatically – and not the additional 1.6 weeks granted by UK law which exceeds the European minimum of 4 weeks’ annual leave.