Working Time Regulations: Sickness Absence & Entitlement to Annual Leave Payment

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I wrote to members in May last year regarding the Kigass Aero Components v. Brown EAT decision that an employee on long-term sickness absence is able to give notice requesting four weeks leave (provided for under the Working Time Regulations) and be paid for that time even if he/she is not being paid during this period. It gives me no pleasure to inform you that this ruling has been overturned at the Court of Appeal whilst reviewing the Commissioners of Inland Revenue v. Ainsworth & Others case.

The Court held that the entitlement to four weeks paid leave does not apply if a worker is already absent from work because of illness. The decision will affect workers who are on reduced pay, or have exhausted their entitlement to sick pay as a result of a long-term illness. Of course, if members have more generous provisions in their contract of employment allowing for the accrual of annual leave during long-term sickness absence, it would still be possible to be paid for this period.

The Court ruled that the provision of four weeks annual leave under the Working Time Regulations was to ensure that a worker takes a minimum period of time away from the pressures of work for health and safety reasons. Someone who is absent through illness for a long period would not be taking 'leave' from the workplace and therefore not gain any benefit to his or her health.

The Court of Appeal also overturned a previous decision that held that workers could claim that non-payment of holiday pay amounted to an unlawful deduction from wages under the ERA 1996. Now any claim for outstanding holiday pay must be brought under the Working Time Regulations.

I understand that PCS, the Union involved, intends to appeal against this decision.