Holidays: how long is the carry-over period for a sick worker?

In the German case of KHS AG v Schulte (C-214/10), the ECJ held that a collective agreement did not breach the Working Time Directive. The agreement provided, e.g. that a sick worker would lose their 2006 and 2007 holidays - if they did not take those holidays within 15 months - after the end of the relevant holiday year.

The ECJ said that a carry-over period for a long-term sick worker must be substantially longer than the holiday year. The carry-over period of 15 months was longer than the holiday year and it was long enough to ensure that a sick worker could take their holidays.

Also see Holidays: use it or lose it

Holidays: use it or lose it

A worker will accrue statutory holiday pay (SHP) while they are on sick leave. However, the EAT has ruled that such a worker will not receive SHP - if they did not give a holiday notice to their employer.

The EAT said that:

It might appear somewhat artificial for an employee who is not at work anyway to have to give notice of an intention that part of her absence should count as holiday; but that merely reflects the artificiality of a period of long-term sickness counting as holiday at all.

In any event the giving of notice is more than a formality. Without it the employer who is not otherwise paying the employee, or is paying him only sick pay, will not know whether, or – just as importantly – when, he is obliged to make any [holiday] payment …

The EAT added that there is no general duty on employers to inform its workers of their right to take holidays while they are on sick leave.

Fraser v Southwest London St. George’s Mental Health Trust [EAT/0456/10]