Tribunal rules that worker off sick during holiday leave is entitled to carry “lost holiday” over to next leave year

In the case of Shah v First West Yorkshire, Mr Shah had booked four weeks' holiday from 22 February to 21 March 2009, but due to sickness absence - which lasted up to and beyond the end of his employer's leave year - was unable to take it. The employment tribunal ruled that the Working Time Regulations 1998 (SI 1998/1833) could be interpreted so as to give effect to a recent European Court of Justice Decision of Pereda. Mr Shah was therefore entitled to carry over his holiday, even though in practice he had already been paid for it while on sick leave. 

In Pereda v Madrid Movilidad, the ECJ ruled that workers who were ill during their holiday should be allowed to reschedule their leave, even it if meant that this would be within the next leave year. Earlier in the year, in the case of Stringer v HMRC, it was decided that workers continued to accrue holiday pay during sick leave, and that holiday could either be taken during sick leave or be carried forward in such cases.

At present, employers are not currently obliged to allow workers to carry any annual leave over to the next year and the judgment of Shah v First West Yorkshire will not be not binding on other tribunals. However, this decision may indicate that employers wishing to engage in good practice should allow leave to be carried forward due to illness.