The Leeds Employment Tribunal has ruled recently that employees are entitled to carry forward holiday from one holiday year to the next, if they are unable to take it because they are off sick.  Mr Shah, an employee of First West Yorkshire Ltd, had four weeks' holiday booked to be taken in March 2009 (the holiday year ended on 31 March).  He broke his ankle before his holiday was due to commence and was off sick for three months.  He asked his employer to allow him to defer his annual leave to the following holiday year, as he would not be able to go on holiday as planned.  His employer refused, as it did not allow carry forward of annual leave.

 

The Working Time Regulations 1998 state that employees are entitled to 28 days' holiday each year and that no more than 8 days may be carried forward to the following year.  However, the Employment Judge in this case decided that the Regulations should be construed so as to allow the carry forward of additional holiday where the employee is unable to take it at the appropriate time because of ill health.  This is in line with recent European Court of Justice decisions. 

 

The Regulations will no doubt be amended soon to better reflect the ECJ decisions (as per my newsletters from last January and September), in the meantime employers need to consider whether their holiday and sickness procedures need to be amended.

In complete contrast to the previous article, employees who are well enough to attend work may lose some of their holiday entitlement if they save it up to the end of the year and then do not give sufficient notice when wishing to book it.  This was the conclusion of the Employment Appeal Tribunal (EAT) in the case of Lyons v Mitie Security.  The employer in this case had a holiday booking procedure contained in the contract of employment which stated that employees should give 4 weeks notice "wherever possible" and that applications on shorter notice would be "considered on their merits and subject to staffing requirements".

 

The EAT concluded that notice provisions such as these could lawfully serve to deny employees their statutory holiday entitlement, if they did not give enough notice towards the end of the year.  However, denying employees their holiday is never going to be received well and is likely to lead to grievances and bad employee relations. 

 

Employers should monitor employees' holiday throughout the year and remind employees in the second half of the year that they need to book leave in time.  Employers whose holiday year ends on 31 December should also consider the Christmas period and whether they should take more proactive steps.  For instance, some employers ask their staff to indicate their Christmas holiday preferences at an early stage so that they know in advance whether this will lead to staffing problems.  It is normally then possible to come to an amicable arrangement with staff which meets their requests partway whilst maintaining appropriate staffing levels. 

As reported in my newsletter from last July, the Government has consulted over plans to change the traditional GP's sick note.  As a result of the consultation, there has been a small change in the plan.  Doctors will start to use the new "Fit note" from 6 April 2010 and it will allow them to indicate that someone is not well enough to work (as currently) or that they "may be fit for work".  The idea of having an option "fit for work" on the form has been dropped.

 

Where the doctor ticks the option "may be fit for work" they will provide further advice on the form.  For instance, they may determine that the employee may be fit for work if they could work on reduced hours or if their duties were temporarily altered.  The employer does not have to follow the advice given, which may not be practicable in the particular circumstances, but it will be a good idea to discuss them with the employee to see whether or not they are workable.

 

This does seem to be a good development and should provide useful information to employers.  No doubt it will lead to some disputes where the employer is prepared to follow the doctor's advice but the employee would rather stay off sick.  This is most likely to occur where the employer provides sick pay over and above statutory levels.

 

The Department of Work and Pensions has produced this guidance for employers.

 

 

The Government's plans to allow mothers to transfer up to 6 months of their maternity leave to fathers as paternity leave, are still on track (see the article "Dads to be the new mums" in my September newsletter).   Subject to its passage through both Houses the new Regulations will become law in April 2010 and will apply to parents of babies due on or after 3 April 2011.