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Sick Pay, Annual Leave and the National Living Wage

10 July 2015:

National Living Wage:

This week George Osborne has announced that the National Minimum Wage will be increased to a National Living Wage, starting at £7.20 and rising to £9 an hour by 2020, replacing the £6.50 minimum wage (see BBC report). Meanwhile, as it’s holiday season:

 

Sick Pay and Annual Leave:

What happens to a workers right to paid holiday if they are off sick?  In 2009 ECJ held that a worker who falls sick while on holiday is indeed entitled to extra holiday to compensate after he has recovered (Pereda v Madrid Movilidad).

 

In Plumb v Duncan Print Group Ltd  reported this week, the EAT  held that the Working Time Directive does not oblige workers on sick leave to demonstrate that they are physically unable to take annual leave in order to carry over accrued unused statutory holiday to the next leave year. It is sufficient that they are absent on sick leave and do not choose to take annual leave during that period.

 

Mr Plumb had an accident at work, and was off work from April to February 2014, when his employment terminated.  He did not use his annual leave by the end of the holiday year. On termination the employer paid accrued holiday for the current leave year but not carry-overs from previous years.

 

However the EAT said the right to carry over leave is not unlimited. The Directive only requires (at most) that workers on sick leave take annual leave within a period of 18 months from the end of the leave year in which it accrues. Therefore reg 13(9) WTR 98 should be read to permit a worker to take annual leave within 18 months of the leave year in which it accrues where they are unable or unwilling to take it because they are on sick leave.

 

Cases of employees going on holiday, getting a tummy bug and then trying to claim back holiday leave seem to be rare. In those circumstances employers will certainly want proof of the illness suffered if holiday leave is being claimed back.

 

Call us today on 0207 118 0950 to speak to one our employment solicitors for advice on sickness absence and paid holiday. See our other posts on our website.

 

See Pereda v Madrid Movilidad. See Plumb v Duncan Print Group.

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