Question

One of my employees has been off sick for the past 10 months. His doctor has confirmed he is now fit enough to return to work but the employee wants to take three weeks of holiday. What should I do? Our holiday year runs from January to December.

Answer

The issue of holidays and sickness absence was turned on its head earlier this year by two court decisions in the case of Stringer v Her Majesty's Revenue and Customs (HMRC).
Previously, employees who were off sick did not accrue statutory holiday under the Working Time Regulations (WTR). However, in January 2009 the European Court of Justice ruled in the Stringer case that employees on sick leave do continue to accrue statutory holiday under the European Working Time Directive (WTD).
When the case returned to the House of Lords in June 2009 they accepted the ECJ's ruling which means that UK employees continue to accrue statutory holiday during any periods of sickness absence.
Therefore, despite not having worked for 10 months of the holiday year, your employee still accrued approximately 23 days statutory holiday during this period which they must be allowed to take.
What are your options?
You could allow the employee to take three weeks holiday at the end of their sick leave. Although this extends their period of absence, it does mean they 'use up' almost all of their accrued statutory holiday before they return to work.
Alternatively, the employee could be allowed to take part of their holiday now and the rest during the remainder of the holiday year. Bear in mind the employee will continue to accrue more holiday over the next two months which they will be able to take before the end of the year.
Another option is to refuse the employee's request to take all of their accrued holiday now but allow them instead to carry over all or some of their accrued holiday to the next holiday year. However if the employee carries over more than eight days this would be in breach of the WTR. Therefore it is advisable to obtain the employee's express written consent to this to limit the risk of a claim being brought later on by the employee. Furthermore there may be implications from a health and safety perspective of not allowing the employee to take any holiday in this holiday year.
Allowing the employee to take their accrued statutory holiday now avoids the employee 'stockpiling' his holiday and is the least risky option.
The employee may also continue to accrue contractual holiday entitlement whilst off sick, unless you have a clause in your contracts which expressly states to the contrary. However, your options in respect of contractual holiday are greater.

Deborah Smithson
Solicitor, Howes Pervical LLP