The case is Shah v First West Yorkshire. Mr Shah was off work for three months between January and April 2009.
During that period, he received contractual sick pay, with the exception of the pre-booked period of annual leave, when he received full holiday pay. His holiday year ran from April to the end of March. After his request to claim back four weeks’ holiday that he had previously booked – and which fell within his period of sickness absence – was refused, he brought a claim. The tribunal found that, “Shah is entitled to take the holidays that he was prevented by ill-health from taking in March of 2009 at some subsequent time in the following leave year.”
The UK Working Time Regulations (WTR) clearly state that if any employee does not take his/her statutory leave during the leave year, then while the additional statutory leave (1.6 weeks) may be carried forward with the agreement of the employer, the basic four weeks’ statutory entitlement is lost. While the European case may be binding immediately on public sector employers, some private
employers may have decided to wait until the government changed the WTR before
changing their own practices. However, while this tribunal case is not binding on other tribunals, it does suggest that tribunals are prepared to comply with EU law, regardless of what the UK legislation says, and employers wishing to follow best-practice – or to minimise risk – should change their
policies to allow leave to be carried forward due to illness.