holiday and sick leave: tribunal adds words into Working Time
Regulations 1998
A Leeds Employment Tribunal has allowed a claim by an
employee who requested to carry holiday over into another leave
year when a broken ankle prevented him from taking it within the
holiday year. Mr Shah asked to reallocate pre-booked holiday
to another time since he was on sick leave from before the planned
holiday until after the end of the holiday year. His employer
refused on the basis that the leave had been lost. Last year a
decision of the European Court of Justice (ECJ) held that such
holiday must be allowed to be taken at another time, if necessary
in the following leave year (Pereda v Madrid Movilidad
SA). Whilst public sector employers have to comply with the
ECJ's decision because they are "emanations of the State", private
sector employers face a choice because currently the Working Time
Regulations 1998 (WTR) provide that leave may only be taken in the
holiday year it is due. However in this case the ET followed the
approach taken recently in another case (Attridge Law v
Coleman) and added words into the WTR to interpret them in
such a way as to give effect to the ECJ's decision, making it
applicable to private sector employers. The words added would allow
carry-over where a worker is prevented by illness from taking
holiday and returns from sick leave without enough time left to
take the holiday in the holiday year.
Please note that this
decision is not binding, and private sector employers still have
the option to refuse – although this is clearly not a risk-free
approach. The case does however show how other Employment Tribunals
might be inclined to decide similar disputes.
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