Off Sick From Work? You Still Accrue Holidays, It's a Fact!



Posted: Thursday, March 26, 2009

by Meera Yagnik
Temple Court Chambers

I thought that this may interest you, our friends in European Court of Justice have ruled on the 21 st January 2009, that workers will be able to build up holiday entitlements even when they are absent from work due to sickness. This particular ruling will force a change to the Working Time Regulations 1998.

The regulations stipulate that workers are not able to accumulate holidays when absent from work due to sickness, you are either sick or on holiday.

It seems rather bizarre if I can be so blunt that the ECJ has given this particular interpretation to the regulations. We are in the midst of a recession, some even call it a depression, and given the unprecedented economic crisis we are facing which had not been predicted to be on such a huge scale. We are not even sure how long it will take to get us back on track for the economy to recover.

Having advised the Federation of Small Businesses (FSB) on issues facing their firms in today's economic climate, the general theme to the people that I had spoken and advised was that they were struggling to keep their business going. Some had inherited the businesses they were in charge of from their families, and, were quite distraught at the prospect of having to shut their doors permanently as they simply are not getting the support from their banks to help keep them afloat. Despite Gordon Brown having pumped billions into the banking system, the banks simply are not passing this on to help small businesses; in fact the FSB has to consider helping them via short term loans.

This decision therefore will add to the problems our small businesses are facing at the moment, it means that businesses will suffer when staff take sick leave, it may even ensure that staff are away from work for longer.

It will also create another obstacle for small businesses, as, they will have to review their staff contracts as a result of this decision, as, it probably states that you do not accrue holidays when off sick. Another burden and increase in costs they simply cannot bear.

The House of Lords is yet to consider the issue of whether workers can actually take holiday time when off work sick. But the fact still remains that they will continue accruing holidays and this will be allowed to run to the next holiday year.

Another interesting aspect to the case is that it is yet to be decided whether the claim will run for unlawful deduction from wages, if so, then the workers effectively will be able to claim back dated holiday pay since 1998 when the Working Time Regulations came into force.

Extraordinary given that small businesses cannot even pay out redundancy pay to their workers given the dilemmas facing them in today's economic climate.

Fact is that the Employment Tribunal has stayed thousands of cases at the Tribunal pending the outcome of the effect of this ruling at the House of Lords.

Watch this space for an update of the HL decision.

Meera Yagnik

Meera provides advice and representation on all Contractual Disputes, Defamation, Employment Law, Intellectual Property (patents, copyright, trade mark and privacy), and Family law matters and is part of Barrister Web www.barristerweb.com.

Meera Yagnik completed her pupillage at 5 St Andrews Hill Chambers of Simon Draycott QC, London.

Meera is presently a barrister (Door Tenant) at Temple Court Chambers specializing in all commercial and employment law related matters.She has extensive litigation experience before the Commercial Courts,Employment Tribunal and Appeal Tribunal. She also lectures on a part time basis for the ICSA Corporate Secretaryship qualification.She has also provided lectures at solicitors offices on Corporate Governance under the Companies Act 2006 and Employment matters.

Meera has also provided advice and assistance to various insurance, local authorities and solicitors firms on Employment, Human Resources and Commercial matters.

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