Sick workers still get holiday pay

by John d'Arcy

Building employers have been warned that operatives who are absent on long-term sickness or injury are still entitled to holiday pay under the Working Time Regulations.

The warning has come from Gerry Lean, industrial relations director of the Construction Confederation. He said two recent Employment Appeal Tribunal (EAT) decisions had compelled the confederation to amend its advice to members. This had previously been based on an EAT (Warnes -v- Situtec) where it was held that a worker must be able to attend work in order to take holidays.

A subsequent EAT (Macredie -v-Thrapston Garage) has decided that holiday pay continues to accrue while the worker is off sick. The worker in this case was entitled to payment in lieu on termination of his employment even though he had not worked for several months. Had he returned to work and not been dismissed, he would still have been entitled to holiday pay benefit accrued during his absence.

A second EAT ruling concerned workers who were absent due to long-term sickness and who claimed holiday pay while still employed, but were unable to work due to sickness (Kigass Aero Components -v- Brown and Bold Transmission Parts -v- Taree).

Here, the appeal court held that under the regulations, provided they gave the required notice to their employer of intent to take annual holiday, then annual holiday pay became payable despite the fact that they were unable to work.

Lean said the presiding EAT judge noted the decision might have consequences that were unintended by the legislators: employers may terminate a worker's contract instead in cases of long-term sickness absence.