Long Term Absence

There are plenty of flu bugs and other ‘nasties’ floating around the average office these days.

Inevitably this leads to sickness and absence from work. Thankfully for most employees, absence is relatively brief and there is no question of employers reducing annual holiday entitlement.

However, what is the position if an employee is away from work for a year due to illness or accident?

Let me try and illustrate where the law is on this apparently straightforward issue.

Statutory minimum holiday entitlement, which is currently 24 days for full-time workers, was introduced by Europe as a health and safety measure. To protect their health and safety, employers should have at least a minimum holiday entitlement. So far, so good.

In the Stringer case however, the Court of Appeal decided that a worker absent for a whole year lost their holiday entitlement. The Appeal Judges said that allowing someone away for a year on sick leave to claim full pay for a “holiday” was a windfall they weren’t entitled to.

The case went to the House of Lords who sent it to the European Court of Justice. That prestigious body has yet to reach a final decision but the Advocate General has given his opinion, which is usually followed by the ECJ which begs the question, why bother with both?  The Advocate General’s opinion is that employees who are absent for a whole year do not lose their statutory holiday entitlement, however, the employee cannot take “holiday” when they are sick;  instead they can take it in the year when they return to work. This decision may or may not be upheld by the European Court of Justice and, until a final decision, the law is uncertain. If the decision is upheld however, what could happen?

Let’s say I am absent from work for two years due to a number of health problems. My genuinely caring employer has been supportive and not sacked me. It has provided all the forms of support that good employers offer. In the year that I come back to work, it seems that I am entitled to three years’ accumulated holiday leave. As an employee, I applaud this as being very good for my health, as an employer I wonder!

For more advice or information, contact Jon Loney

Published 28/01/2008. The author of this article is Jon Loney