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Holiday carry over due to sickness

View profile for Phil Cookson
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A recent decision of the European Court of Justice (“ECJ”) in relation to a Polish employment case confirms the principle that an employee who is prevented from taking their holiday entitlement due to sickness should be allowed to take their holiday entitlement in the following holiday year.

The Working Time Regulations 1998 (“WTR”) set out the law in respect of holidays in the UK and specifically provide that holiday entitlement accrued in one leave year cannot be carried over into the following leave year.  The ECJ has previously ruled, as confirmed in the recent Polish case, that this specific provision of the WTR is incompatible with the European Working Time Directive. 

Currently, Employment Tribunals in the UK are required to apply the law giving effect to European directives.  Whilst the requirement to apply European derived principles may be altered in light of the Brexit vote, it is unlikely that changes will be implemented quickly or with enough certainty that employers can risk departing from established principles now.