EMPLOYMENT CASE LAW: Accrual of Annual Leave while on Sick Leave - What does it mean for your Organisation
New provisions of the Organisation of Working Time Act have now included amendments whereby an Employee on long term sick leave can accrue annual leave.
The amended legislation was brought in as a result of the Court of Justice of the European Union rulings on the accrual of annual leave entitlements during sick leave. The Cabinet approved the amendment of the Organisation of Working Time Act 1997 last November and the legislation came into effect on Saturday 1st August.
Minister Ged Nash said: “The change to the legislation will bring clarity in Irish law as to how annual leave can be accrued and carried over when an employee cannot take their paid annual leave due to illness”.
“I believe that the changes are fair and supportive to workers while also giving clarity to employers about their obligations to their employee.”
Prior to these changes, the Organisation of Working Time Act 1997 provided that annual leave was calculated on the basis of time worked and was silent on the issue of how time spent on sick leave should be regarded for the purposes of calculating annual leave.
The changes arising out of the legislation include:
The position if an Employee has been on certified sick leave for a full leave year
If an Employee normally works a minimum of 1,365 hours in a leave year (i.e. the minimum threshold set out in the Organisation of Working Time Act 1997 for entitlement to the maximum 4 weeks’ statutory annual leave) and, if that Employee has been on certified sick leave for a full leave year, then the Employee will accrue 4 weeks’ statutory annual leave in respect of that leave year.
An annual leave carryover period of 15 months after a leave year will apply to Employees who could not take annual leave during the leave year
Employers should note that there is an increase in the annual leave carryover from 6 months to 15 months, in cases where workers could not take annual leave due to sickness.
On termination of employment, payment in lieu of untaken accrued annual leave will apply
Where the termination of employment occurs, payment in lieu of untaken annual leave as a result of sickness within 15 months of the end of the particular leave year must be paid to the Employee.
Employers should take the appropriate steps in order to ascertain the position of an Employee on long term sick leave and whether they intend on returning to work. Employers may wish to consult company Doctors or Occupational Health professionals in such cases. Also ensuring the Employee in question is involved during the decision making process is important in order to ensure a claim of unfair dismissal or on an equality ground does not ensue.
The amended legislation was brought in as a result of the Court of Justice of the European Union rulings on the accrual of annual leave entitlements during sick leave. The Cabinet approved the amendment of the Organisation of Working Time Act 1997 last November and the legislation came into effect on Saturday 1st August.
Minister Ged Nash said: “The change to the legislation will bring clarity in Irish law as to how annual leave can be accrued and carried over when an employee cannot take their paid annual leave due to illness”.
“I believe that the changes are fair and supportive to workers while also giving clarity to employers about their obligations to their employee.”
Prior to these changes, the Organisation of Working Time Act 1997 provided that annual leave was calculated on the basis of time worked and was silent on the issue of how time spent on sick leave should be regarded for the purposes of calculating annual leave.
The changes arising out of the legislation include:
The position if an Employee has been on certified sick leave for a full leave year
If an Employee normally works a minimum of 1,365 hours in a leave year (i.e. the minimum threshold set out in the Organisation of Working Time Act 1997 for entitlement to the maximum 4 weeks’ statutory annual leave) and, if that Employee has been on certified sick leave for a full leave year, then the Employee will accrue 4 weeks’ statutory annual leave in respect of that leave year.
An annual leave carryover period of 15 months after a leave year will apply to Employees who could not take annual leave during the leave year
Employers should note that there is an increase in the annual leave carryover from 6 months to 15 months, in cases where workers could not take annual leave due to sickness.
On termination of employment, payment in lieu of untaken accrued annual leave will apply
Where the termination of employment occurs, payment in lieu of untaken annual leave as a result of sickness within 15 months of the end of the particular leave year must be paid to the Employee.
Employers should take the appropriate steps in order to ascertain the position of an Employee on long term sick leave and whether they intend on returning to work. Employers may wish to consult company Doctors or Occupational Health professionals in such cases. Also ensuring the Employee in question is involved during the decision making process is important in order to ensure a claim of unfair dismissal or on an equality ground does not ensue.
