Question
I’m looking for some guidance on accrual of holidays when an employee has been on long-term sick leave, then returns to go on maternity leave. Is she entitled to accrue almost two years’ holiday?
Legal Advice
Esther Smith, a partner at Thomas Eggar
The short answer to this question is probably ‘yes’. I am afraid that any holiday accrued during long-term sickness absence will carry over, along with any holiday accrued during her maternity leave.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, solicitor at Speechly Bircham
Workers in the UK are entitled to a minimum amount of holiday per year under the Working Time Regulations – this is their statutory entitlement. They may be given an additional holiday entitlement under their contract of employment.
Employees on maternity leave are entitled to accrue their statutory and contractual holiday. Employees on sick leave accrue their statutory holiday and, depending on what their contract says, may also accrue any contractual holiday over and above this.
Difficulties do arise, however, regarding when that holiday can be taken. Case law says that annual leave cannot be taken while someone is on maternity, although statutory holiday can be taken whilst on sick leave. Furthermore, domestic legislation (the Working Time Regulations) restricts how much holiday can be carried over into a subsequent holiday year.
The problem is that it would be discriminatory for an employer to restrict an employee from taking any of their holiday entitlement because they had been on maternity leave. Similarly, preventing someone from taking holiday that they have accrued on long-term sick leave in a subsequent holiday year does not sit well with European case law. As mentioned, an option is to allow the individual to take their accrued statutory holiday whilst on sick leave, if they want to do this.
So in summary, it is safest to assume that, in your scenario, if the individual has gone seamlessly from being on long-term sick leave to being on maternity leave that they accrue holiday during this period.
Adam Partington is a solicitor at Speechly Bircham LLP.
