The position in relation to holiday rights of employees who are on long term sick has been considered again by an Employment Tribunal in the case of Adams and another v Harwich International Port Ltd.
In this case, two employees, Mr Adams and Mr Hunwick, were off sick from 9 July 2009 to 26 March 2010 and 26 January 2010 to 6 June 2010 respectively. Neither took any statutory holiday during their sick leave.
The employees' union representatives wrote to the employer in November 2010 and stated that the employees wished to take statutory holiday which had accrued during their sickness absence. In the alternative, they asked if the employees could carry over their unused entitlement into 2011.
The employer rejected the requests as "not correct".
The employees raised formal grievances. Before these were processed, the employees brought Tribunal proceedings on the basis that, contrary to the Working Time Regulations, their employer had refused to allow them to exercise their statutory holiday rights.
The Tribunal upheld the employees' complaints. The Judge determined that the words of the relevant regulation can be read to enable workers to carry statutory holiday over to the next holiday year where they have been unwilling or unable to take it because of sickness.
The Judge did, however, conclude that employees would not be able to carry over leave indefinitely from year to year. The Judge also held that this ability to carry over holiday applied to the entire 5.6 weeks and did not exclude the additional 1.6 weeks introduced in April 2009.
The employer argued that the employees had not complied with the notice requirements set out in the Working Time Regulations. The Judge concluded that this was "irrelevant" because the rights had been "substantively asserted and substantively denied".
The area of holiday rights has been constantly evolving since the decisions of the European Court of Justice in Stringer and Pereda. This case, unsurprisingly, continues the trend of extending the rights of workers on sick leave. There are a few points which are questionable in the Tribunal's reasoning. For example, Mr Adams was allowed to carry over his holiday entitlement from his sick leave in 2010 to 2011, despite the fact that he had 9 months in 2010 to take this.
The case also focuses on the holiday which accrued during the period of sick leave and indicates that only this should be allowed to be carried forward. This is at odds with the decision in Pereda which was not concerned with when leave accrued but only whether an employee had been unable to enjoy their accrued entitlement due to their sick leave.
This is only a first instance decision, so it seems likely that this area of law will be considered again in the near future. For the time being, employers need to keep an eye on the holiday entitlement of their sick workers and make sure that requests to take holiday whilst on sick leave or to carry over unused holiday (which has not been used due to sickness) are not disregarded.