Annual Leave while Sick – Employee Entitlements
As most employers are by now aware, the Organisation of Working Time Act was amended effective 1st August 2015, bringing with it significant changes regarding employees’ rights to accrual of annual leave whilst off sick.
Changes to Organisation of Working Time Act
Prior to 1st August 2015 employees who were on a period of sickness absence, whether certified or uncertified, were not entitled to accrue annual leave during this absence.
The 1st August 2015 amendment provided for the following changes:
1. Employees who are on a period of certified sickness leave are entitled to accrue annual leave during this period. Employees on uncertified sick leave do not have the right to accrue annual leave
2. Employees on certified sick leave retain the right to accrue statutory annual leave only. Any annual leave contractually given by the employer over and above this is not to be carried over, unless at the sole discretion of the employer.
3. Leave accrued during periods of certified sickness absence should be given within the leave year in which it was accrued. If this is not possible, it can be given in the first 6 months of the next leave year with agreement from the employee.
4. Employees can only carry over annual leave accrued whilst on certified sick leave for 15 months following the end of the year in which it was accrued. This prevents endless carry-over of leave in the case of employees who are on very long-term sickness absence i.e. several years.
The practical implications of these changes have been administratively difficult for employers, as they may have to look at several leave years as well as part leave years when calculating entitlements correctly.
The fact that annual leave can only be accrued during periods of certified absence can also cause difficulties when there have been several periods of uncertified sick leave taken by an employee during the reference period.
These changes require employers to:
- Ensure robust procedures are in place for logging and tracking periods of certified and uncertified sickness absence.
- Carry out an annual leave audit at the end of each year ensuring certified and uncertified sickness is taken into account. This will provide an accurate picture of an employee’s annual leave entitlement for that leave year.
How can we help
We provide employers with support and advice, by phone, email and face-to-face, for all employment law and HR matters.
We can provide you with assistance auditing your current practices and methods of recording/calculating annual leave. We can also help you put in place new practices and develop the necessary tools to ensure you are meeting these requirements.