Annual leave: another headache for colleges

Recent cases reported on the problems of sickness and annual leave are causing some consternation in College HR Departments.  Most Colleges are aware that this issue is fraught with legal and practical difficulty but these cases highlight further how interlinked these forms of leave can take and how some outstanding questions have yet to be resolved.  The cases are often like buses, with several appearing at once.

Most College HR practitioners will now be familiar with the position as regards annual leave and when an employee falls sick during that leave.  The fairly old cases now of Pereda and Stringer have held that workers are entitled to carry forward annual leave from one year to the next when they have been unable to take that leave through sickness absence.  This has often ended up with Colleges having members of staff with large amounts of annual leave still to take, some of which cannot be taken during the leave year and where debate is had as to whether all of that leave could be carried forward to the next year.  The financial implications for Colleges in these strapped for cash times cannot be underestimated.

Case law reported in the last month or so has added yet further strata to the issue and how Colleges deal with sickness absence and annual leave at the same time.

It has been recognised that individuals who go off sick before their period of planned annual leave are able to retake that leave at a later date.  According to the European Courts this would ensure that the Working Time Directive is properly implemented into the law of the EU Member States.  Further, it demonstrates the real need to balance working time with rest periods, which goes to the essence of working time, based on health and safety grounds.  This position caused panic amongst FE practitioners, particularly in light of the fact that many employees in the FE sector have large amounts of holiday entitlement given to them each year.

Two recent cases have built on these principles further.  In the ANGED case, the Courts have concluded that an employee who already has a pre-booked period of annual leave but then falls ill during that period of leave is now able to take that leave at a later date.  This could even allow holiday to be carried forward to the next leave year.  Clearly, Colleges will be concerned about this given the large amount of annual leave that individuals already receive.  Further, it could open the situation to abuse.  To that extent, HR Directors and manager in Colleges are looking at their annual leave policies and making sure that if this situation does arise, then it is clearly up to the employee to provide medical evidence to support the view that they have been on a period of sickness absence whilst already on holiday.  A failure to follow a College’s policy or indeed abuse that policy could result in disciplinary action.

Only last week, a further case involving the NHS has sought to continue the buses coming in their droves.  In that case, the Court held that annual leave would be carried over to the next year regardless of whether a worker had requested it or not.  More consternation for HR Departments within Colleges.  Whilst the case only refer to statutory as opposed to contractual leave which, within the sector, is about half to two thirds of an average employee’s entitlement, the fact remains that the holiday booked and then not taken through sickness is likely to constitute (or so an employee would argue) statutory leave.  It will be a hard pressed College to justify otherwise.

In the meantime, if Colleges have not already reviewed their annual leave policy they should do so to ensure it complies with the recent case law.

Matthew Kelly is a partner at law firm Thomas Eggar, which handles a wide range of related litigation, such as issues relating to FE governance and capital projects