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Posted 25 October 2011
by Martin Laver

Holiday pay whilst on sick leave

The issue of holiday pay whilst an employee is off on long term sick has been rumbling around the courts longer than Jarndyce -v- Jarndyce.   Cases have been heard in the Employment Appeal Tribunal, the Court of Appeal, the House of Lords (now the Supreme Court) and the European Court of Justice (“ECJ”).

The most recent case Adams and another -v- Harwich International Port Ltd has confirmed what we all suspected for a while, which is that where an employee has been unable to take their holiday because of long term sick leave, they are entitled to carry forward the entire statutory minimum 5.6 weeks annual leave, into the next leave year.

Whilst this is only an Employment Tribunal case and so not binding, it will almost certainly be followed by subsequent tribunals.  This decision is based on the principles which have been handed down from the ECJ and which our courts must presently follow.  Eurosceptics can start grumbling now.

From a practical point of view, it does seem hard to understand the thinking here.  Whilst we can clearly understand that the protection of an employee’s health and safety is important, something which gave rise to the minimum annual leave provisions in the first place, most employers we speak to struggle to see how giving the employee two lots of annual leave in their returning year is going to provide any real benefit.  Indeed, an employee may find it even harder to return to full speed.


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About the author

Martin Laver

Partner and Solicitor

Partner in the commercial litigation team specialising in disputed trusts and Wills