Annual Leave Coinciding With Sickness Absence Can be Taken in the Following Leave Year

An employment tribunal held in Shah v First West Yorkshire Ltd ET/1809311/09 that the Working Time Regulations 1998 (WTR) can be interpreted in accordance with the European Court of Justice's decision in Pereda v Madrid Movilidad SA to allow annual leave which has coincided with sickness absence to be taken in the following leave year.

Mr Shah booked four weeks' holiday from 22 February to 21 March 2009. His employer's holiday year ran from 1 April to 31 March. Mr Shah broke his ankle in January 2009 and was on sickness absence between 15 January to 18 April 2009. This meant that Mr Shah's sickness absence overlapped with his booked period of holiday. Mr Shah subsequently wrote to his employer, requesting that his 12 days' holiday be reclaimed. His employer argued that the holiday could not be reclaimed as it related to a previous leave year and had therefore been forfeited. Mr Shah submitted a claim for loss of holiday under the WTR and unlawful deduction from wages under section 13 of the Employment Rights Act 1996.

Mr Shah's claim was upheld by the employment tribunal. It made a declaration under the WTR that his employer had refused to permit Mr Shah to exercise his rights under the WTR as Mr Shah was not permitted to take his accrued holiday in the following leave year when he was prevented, due to sickness absence, from taking it in the current leave year.