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Annual Leave for Sick Employees

13/01/2012

An Employee on sick leave must request annual leave to receive payment.

In the recent case of Fraser v Southwest London St George’s Mental Health Trust it was decided that an employee who is absent due to long term sickness must actively request annual leave in accordance with Regulation 15 of the Working Time Regulations 1998 to be entitled to receive payment for this period.

Case law has made it clear that holiday entitlement continues to accrue even where the employee is on long term sick leave. Therefore an employee who is off sick would still be entitled to take and be paid for their 5.6 week statutory holiday entitlement.

However, in previous cases it was suggested that the requirement to request annual leave should not apply to workers who are off sick as it might appear somewhat artificial for an employee who is not at work to have to give notice for part of the absence to count as holiday.

The Fraser case provides some welcome relief for employers with employees on long term sick leave as it also establishes that there is no implied contractual duty on an employer to inform staff of their right to request statutory holiday leave whilst on long term sickness.

KBL are able to provide further advice and assistance to businesses that have employees who are absent due to long term sickness, both relation to annual leave and also any other issues that may arise.