A tribunal has held, in the case of Adams and another v Harwich International Port Limited, that the Working Time Regulations 1998 (WTR) can be interpreted so as to give effect to the Working Time Directive, and allow for sick workers to carry forward their full 5.6 weeks’ statutory holiday entitlement into a subsequent leave year, when they have been unable or unwilling to use it due to sickness absence.
Recent case law from Europe has clearly established that workers who are unable or unwilling to take leave during a period of sickness absence should be allowed to take it following their return to work, even if that means carrying it forward to a subsequent leave year. The difficulty in the UK, however, is that the WTR, which implement the Directive, explicitly prohibit carry-over of the statutory minimum entitlement (currently 5.6 weeks). This case is the first time a tribunal has addressed this conflict.
The employment judge accepted that the WTR are incompatible with the Directive in this respect, but held that they can be made compliant by reading an exception into the prohibition on carry-over, in circumstances when the holiday has accrued during a period of sickness absence, and the worker has been unable or unwilling to take it concurrently with sick leave, and unable to take it before the leave year ends. The judge then went further and considered whether this exception should apply to the full 5.6 weeks entitlement under the WTR, or just the four weeks’ entitlement under the Directive, holding that it should apply to the full 5.6 weeks. This was for reasons of legislative simplicity, to ensure that the additional 1.6 weeks’ leave serves its purpose, and because, without express wording in the WTR, the additional entitlement shouldn’t be subject to greater limitation than the minimum entitlement under the Directive. Lastly the judge noted that he did not believe that holiday entitlement should be allowed to accumulate year upon year in respect of workers on long term sick leave, as there should come a point when, due to the time elapsed since its accrual, the taking of the leave no longer served the legislative intent of protecting health and safety. The judge did not comment however on the point at which this would likely occur.
Impact for employers
- This decision is wholly unsurprising, in light of the clear decisions of the European Court of Justice on this matter, and subsequent decisions of the EAT that have followed in the UK.
- Whilst the government is considering amendments to the WTR, in order to bring them into line with European law, their proposal only relates to the minimum four weeks’ entitlement under the Directive, rather than the full 5.6 weeks. The judge in this case however felt the carry over provisions should apply to the full 5.6 weeks, and so there appears to be a conflict between judicial interpretation of the case law, and Government opinion.
- In light of the comments of the judge about carrying forward holiday indefinitely, it will remain to be seen whether any time limit on carry-over of holidays will make its way into the amended WTR.