The Employment Appeal Tribunal (EAT) has held that the Working Time Directive (2003/88/EC) does not require workers on sick leave to provide evidence that they are physically unable to take annual leave to carry over accrued unused statutory holiday to a subsequent leave year. It is sufficient that they are absent on sick leave and do not choose to take annual leave during that period.

However, the EAT also held that the right to carry over leave is not unlimited. Consequently, businesses should read the Working Time Regulations 1998 (WTR) as permitting a worker to take annual leave within 18 months of the leave year in which it accrues where they are unable or unwilling to take it because they are on sick leave. Accrued leave that goes beyond that cut-off period will lapse.

Please note that the above does not constitute legal advice.