I realise I have several times returned this issue but that is only because it is confusing and still to be completely clarified.
The origins are in the working time directive (WTD) which is a document originating in the EU. This states that everyone is entitled to 20 days holiday for rest and recreation they are not allowed to be ‘bought out’ neither are they allowed to be carried over otherwise the benefits are lost.
The UK interpreted the WTD into the working time regulations (WTR) which gave everyone 28 days essentially the 20 days from the WTD plus the 8 statutory holidays.
There have been several cases which have gone to the European Court of Justice (ECJ) to try to establish an employee’s entitlement to holiday when sick or falling sick when on holiday and for how far back can a sick employee accumulate holiday. Please remember all ECJ decisions are applicable to the WTD (20 days) not the WTR (28 days) any decision concerning vacation entitlement in excess of the WTD is entirely at the employer’s discretion.
The situation, in the absence of any collective agreement which may override the WTR, at present as established by case law at the ECJ is
- An employee off sick accumulates vacation
- A sick employee does not have to ask for the holiday to be carried forward from 1 holiday year to another.
- An employee who falls sick while on vacation can reclaim the vacation lost due to sickness.
- Employees can be made to take their accrued holiday within a specified period which must be longer than the holiday year at present around 15 months is the norm.
The biggest issue for an employee is how to monitor the employee who falls sick while on vacation. I recommend that the employer takes a hard line on this occasion and changes the sickness and absence policy. For those of you who have a copy of a handbook issued by me please add to section 2.2 ‘In the event you fall sick while on vacation you are required to supply a fit note covering any absence from day1. Should you fall sick while on vacation abroad a fit note together with an English language translation is required. In the event you become sick through a self induced injury SSP will not be paid. In all cases you will be required to attend a back to work interview on your return and any payment in excess of SSP will be at the discretion of the company.
For any help with this and other HR or employment law issues please contact me on 02036407748 or at firstname.lastname@example.org
I hope all readers have a happy and a prosperous new year.