As anticipated in earlier postings on this site, an employment tribunal has now decided that the Working Time Regulations 1998 can be interpreted to allow workers (which includes employees) to take annual leave ruined by sickness to be retaken in the following leave year. This is in line with European decisions. Thus, the employer's refusal to allow S to retake his holiday ruined by a broken ankle in a new leave year was a breach of the Regulations.
A Mr Shah had booked four weeks of holiday from 22 February to 21 March 2009. Unfortunately, as a result of breaking his ankle in January, he was on sick leave until 18 April, during which he was paid holiday pay (a higher rate than contractual sick pay) for the days he had booked off. When he asked to reclaim his holiday entitlement, his employer said that the days were 'lost' because he had returned to work after the new holiday year started on 31 March. Mr Shah lodged a claim at a tribunal that under the Regulations he was entitled to take his accrued untaken leave.
The UK’s Regulations provide that an entitlement to leave under the Regulations must be exercised in the year of accrual. On the face of the words no carry over is allowed. This was the problem for Mr Shah. However, national laws should be interpreted in line with the provisions of the European Directive that required the Regulations in the first place, so far as possible. As a result of the European Court of Justice’s decision in Pereda, the Directive was interpreted to mean that each national law is required to permit an employee who falls sick during annual leave to take that annual leave at a different time, if necessary in the following leave year.
So, although the UK Regulations appeared to prevent Mr Shah carrying his spoiled holiday entitlement forward the tribunal's opinion, interpreting the UK Regulations in accordance with Pereda was 'entirely consistent' with the underlying thrust of the legislation. The relevant regulation (13(9)(a)) protects workers' health and safety by ensuring they have a period of leisure each year, rather than storing up holiday over several years. It is consistent with this purpose to allow workers who did not have a period of leisure due to ill health to take that leave in the following year if necessary.
