SICKNESS ABSENCE - 07.11.2022

Does holiday accrue if sick pay has run out?

Statutory holiday

Under the Working Time Regulations 1998(WTR) those who work a five-day week are entitled to 5.6 weeks’, which equates to 28 days’, paid holiday each holiday year.

This is comprised of four weeks’ statutory minimum holiday - which is an employment right that’s derived from the EU Working Time Directive - and an additional 1.6 week’s statutory holiday which is a UK-only derived right granted under the WTR .

Pro rata

In the first year of employment, statutory holiday entitlement should be calculated on a pro rata basis, i.e. an employee doesn’t get their full statutory holiday entitlement.

You must also pro rata statutory holiday entitlement annually for those individuals who work fewer than five days per week, e.g. part timers.

Sick pay

Depending on the terms of their employment contract, which will differ for all employers, an employee who is off sick will either be in receipt of contractual sick pay, statutory sick pay (SSP) or a mixture of both.

For example, the employee may receive full pay for the first two weeks’ sickness absence , then SSP only for the remainder of their sickness absence.

SSP is payable for a maximum of 28 weeks and many smaller employers don’t offer enhanced contractual sick pay schemes.

Any more holiday?

Where an employee is off long-term sick, it’s possible that their entitlement to sick pay will be exhausted at some point.

Were this situation occurs, the individual continues to accrue statutory holiday entitlement - this right does not cease because they are not receiving any remuneration from you.

Taking your leave

Those who are absent from work on sick leave are entitled to take their statutory holiday, and be paid holiday pay in the usual way, even if they’ve already exhausted their right to contractual sick pay or SSP.

They may also ask to convert some of their sickness absence to holiday. However, they have no specific right to do this and you aren’t obliged to agree to their request.

Tip. You cannot require or force a worker to take any of their accrued holiday during a period of sickness absence . But if they return to work before the end of your holiday year and there is sufficient time remaining for them to take their accrued statutory holiday, you may require them to do so at this point.

Tip. To avoid any misunderstandings, set out your rules in a clear holidays policy (see The next step ).

For a holidays policy, visit https://www.tips-and-advice.co.uk , Download Zone, year 24, issue 20.