Carrying over annual leave

Entitlement to annual leave

If you have been off for a year your employer is legally required to roll over your full annual leave entitlement although not necessarily bank holidays. I’ve posted the RCN guidance below. ACAS has similar guidance so applicable even if you’re not an RCN member.

Longer-term sickness and accrual of annual leave

The European Court of Justice (ECJ) ruled that an employee should be able to accrue their statutory annual leave if they were unable to take those holidays due to ill health. Statutory leave is different to contractual leave. Everyone is entitled to a certain amount of statutory leave but a contract of employment normally exceeds this minimum amount. For details on statutory annual leave click here. The Healy case confirmed that the amount of leave that can be carried forward is limited to 20 days (for a full time worker) rather than 28 days. (Click here for more information about the Healy case.) UK’s extra 1.6 weeks’ annual leave does not automatically carry over although this is at your manager’s discretion.
In Sood Enterprises Ltd v Healy, the ECJ held that, in the absence of an agreement to the contrary, the extra 1.6 weeks’ annual leave to which UK workers are entitled under the Working Time Regulations 1998 does not carry over to the following leave year when a worker is on long-term sick leave.
If your employer refuses to either pay or carry over your statutory annual leave because of sickness, this may be unlawful. You should call us for support. If your contract is terminated and you have been unable to take your holidays due to ill health you have a right to be paid for your statutory annual leave.

An example:

Mary is a nurse who on average works 5 days a week. She is entitled to 28 days statutory leave a year. She has been with the NHS for over 5 years so contractually she is entitled to 29 days annual leave plus 8 public holidays. From January 2015-April 2015 Mary took 5 days annual leave. From May 2015-December 2015 Mary was off sick. She returned in January 2016. Mary is entitled to carry over 20 days of annual leave.   Don’t forget more information about your employment rights can be found in the NHS Terms and Conditions Handbook which can be accessed by clicking here. Please also remember to involve your union rep in any discussions with your employer about this issue (or any other employment issue).