Monday, August 17, 2015
Prior to this amendment, employees had no right to build up holidays while they were out of the office sick. This has been controversial for some time and has been the subject of a number of challenges in the European Court of Justice. The ECJ has ruled that employees are entitled to accrue holidays during sick leave but the vagaries of the European Union law have meant that only public sector workers could benefit from this in Ireland.
In other words, all private sector employees had no entitlement to build up their holidays even though they were sick – although their public sector colleagues could do so.
The law is now crystal clear. Any Irish employee on certified sick leave is now entitled to accrue annual leave.
Obviously, being able to avail of annual leave depends upon the allocation in the contract of employment (or, at a minimum, the 20 days allowed under the Act). The new development doesn’t increase the amount of annual leave to which an employee is entitled. Likewise, it doesn’t impose any obligation to pay employees during sick leave (there is no statutory right to paid sick leave – although employment contracts often allow a period of pay while ill).
However, it does mean that an employee absent for months at a time on certified sick leave will still be able to avail of their usual cohort of annual leave once they have the required service (even if part of that “service” was build up while they were on sick leave).
The legislation also provides that employees will be able to carry accrued leave over for 15 months after the end of the leave year. If accrued leave is not taken during this period, it cannot be availed of.
This isn’t the most encouraging news for employers – it obviously means that an employee who is absent for most of the year on certified sick leave can still benefit from paid holidays.
One (small) consolation is that the legislation explicitly refers to certified sick leave, although that is probably not much consolation given that a prudent employer will insist upon a doctor’s certificate as a minimum anyway.
Either way, the rule is now fixed and is something to bear in mind for employers with workers who are periodically on sick leave.