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A receptionist’s pay has stopped following sickness absence for more than a year. Does holiday entitlement stop accruing as well?


6 September 2011

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Question in full:

A receptionist has had her pay stopped following sickness absence for more than a year. Would I be on steady ground if I was to advise her that holiday entitlement stops accruing when pay stops?

Question in full:

Question in full:

A receptionist has had her pay stopped following sickness absence for more than a year. Would I be on steady ground if I was to advise her that holiday entitlement stops accruing when pay stops?

Question in full:

A receptionist has had her pay stopped following sickness absence for more than a year. Would I be on steady ground if I was to advise her that holiday entitlement stops accruing when pay stops?

A: Employees can accrue and take statutory annual leave (5.6 weeks for a full-time employee) while on sick leave, regardless of whether they are receiving any income during this period or the duration of the sickness absence. However, employers are free to restrict any additional contractual annual leave entitlement from accruing during this time (provided that this is in line with the terms of their contract of employment).

Therefore, assuming that your receptionist is employed in a full-time role and her contract of employment does not state otherwise, she will not accrue any annual leave in excess of the statutory minimum of 5.6 weeks.

Given that your receptionist is on long-term sickness absence, a further issue is whether this accrued annual leave can be carried over into the following annual leave year or whether it will be lost if it is not taken in the annual leave year in which it was due.

There is conflicting European and domestic law on this point. A judgement in the European Court of Justice states that employees who have been unable to take their annual leave in the year in which it became due as a result of sickness absence should be entitled to carry over that leave into the following annual leave year.

Domestic law, however, states that an employee must take their statutory annual leave in the year in which it becomes due. This therefore suggests leave cannot be carried over into the following year.

Employment tribunal decisions have been inconsistent in dealing with this issue and, until the matter is clarified, we would advise that you take the more cautious approach of allowing the receptionist to carry over any statutory annual leave which she has accrued, but has been unable to take during the leave year as a result of her sickness absence. It is important to note that when dealing with this issue, you should be able to demonstrate that you have taken a reasonable and consistent approach with all employees.

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