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Annual Leave

Hangover Days

How many working days is your business losing to hangovers? This is particularly relevant after the festive season where Christmas parties and social events often fall on a school night. Did your business suffer a flurry of suspicious tummy bugs during Christmas party season? Some businesses are choosing to accommodate hangovers in a different way, keen to avoid the extra absence which seems to occur around this time of year.

The Audit Lab is a Bolton based business which has decided to do things a bit differently. The business allows employees to book ‘hangover days’ in advance when they know they are going out midweek. This enables employees to work from home in their pyjamas rather than come into the office when feeling delicate. Founder and director, Claire Crompton, told BBC5 Live’s Wake Up To Money that the system appeals to the younger generation and promotes honesty. She said that alarm bells might ring if staff were pulling two or three hangover days a week or missing important meetings but said employees have been respectful so far.

Does this kind of system encourage heavy drinking mid-week or simply reduce the incidence of employees ringing in sick when they have overindulged? This kind of policy won’t suit every business, but flexible working is increasingly becoming the norm. Employers should consider what flexibility can bring in terms of honesty and commitment, as well as the positive effect on working hours lost to sickness absence. And wouldn’t you rather know the real reason for someone staying in bed?

Astons Solicitors
31st December 2019

 

Sickness Absence and Holiday Pay

In the recent EAT case of Sood Enterprises v Healy it was held that additional annual leave cannot be carried forward into the next leave year, unless there is an agreement in place between the parties.

One of the difficult questions concerning the relationship between statutory holiday rights and long-term sick leave is the apparent incompatibility between regulation 13(9) of the Working Time Regulations 1998 and the Directive regarding carry-over of holiday for workers who have been unable to take the holiday due to sickness. In 2012, the Court of Appeal took the view in the case of NHS Leeds v Larner that it was possible to interpret the Working Time Regulations 1998 in line with the Directive so as to allow carry over of holiday of up to 4 weeks (i.e. 20 days) where a worker was on long-term sick leave. However, the court declined to decide whether the Directive requires the additional 1.6 weeks (i.e. 8 days) under regulation 13A to be treated in the same way as the four weeks’ leave under regulation 13.

In Sood Enterprises v Healy, the EAT have confirmed that the Working Time Directive does not require carry-over of the additional 1.6 weeks’ leave under regulation 13A of the Working Time Regulations 1998 where a worker is prevented from taking holiday due to long-term sickness absence.

So at the present time, if, for example, a worker is on long-term sick leave for the whole of 2013 and their holiday entitlement is the statutory minimum 28 days, then 20 of those days automatically carry forward into the next leave year (i.e. into 2014) and the remaining 8 days do not, unless there is an agreement between the employer and the worker for the 8 days to be carried forward. That is the position for the time being and will remain so unless and until a higher court rules otherwise or it is changed through legislation.

Written by
Edward Aston
6th August 2013

Holiday Pay – Court of Appeal rules on whether holiday can be carried over

The Court of Appeal has recently announced its decision in the case of NHS Leeds v Larner.

Mrs Larner had been employed by NHS Leeds for 20 hours a week and her contract of employment stated that during a period of sick leave she would accrue holiday but that she was only entitled to carry it over in exceptional circumstances.

Mrs Larner was on sick leave for the whole of the holiday year 2009/2010 and during this time took no holiday entitlement and neither did she ever request for it to be carried over into the 2010/2011 holiday year. During the early part of 2010/2011 holiday year NHS Leeds dismissed Mrs Larner.

As Mrs Larner had not requested to take any holiday nor asked to carry it over, NHS Leeds did not pay her any holiday pay in lieu of notice for the holiday year 2009/2010 having concluded that this holiday had been lost. Mrs Larner made a claim for unpaid holiday under the Working time Regulations 1998.

The Court of Appeal ruled that Mrs Larner was entitled to be paid for the annual leave in 2009/2010 that she had not been able to take due to her illness and that although no request had been made by Mrs Larner to carry over the holiday this was an automatic process. Although this decision was binding on the NHS which is an emanation of the state, the Court of Appeal held it would apply to private employers as well.

This ruling puts an end to the conflict between the two earlier Employment Appeal Tribunal (EAT) cases of NHS Leeds v Larner and the later decision of the EAT in Fraser v South West London St George’s Mental Health Trust. In the latter case the EAT had ruled that unless the employee requested to carry over the holiday the employer had no obligation to carry it over or pay it in lieu of notice. This is now overruled by the Court of Appeal.

Written by
Edward Aston
30th July 2012

Annual Leave and Sickness

Must a worker who falls ill during a period of statutory annual leave be entitled to take that leave at a later date?

Yes said the European Court of Justice in Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others C-78/11.

The ECJ has held that a worker who becomes unfit for work during a period of statutory annual leave must, under Article 7(1) of the EC Working Time Directive, be entitled to reschedule the period of planned leave that coincides with the period of unfitness for work.

It was already clear from a previous ECJ case (Pereda v Madrid Movilidad SA) that a worker who becomes unfit for work before a period of statutory annual leave which extends into the annual leave must be able to take that leave at a later date. In the ECJ’s view in ANGED, it would be arbitrary and contrary to the purpose of the Directive to take a different approach to this where a worker falls ill after the leave has started.

Written by Edward Aston

28th June 2012