Your Right To Be Paid Annual Leave During Sickness

From General Secretary Bob Crow

In my circular No NP/185/12 dated 10th August 2012 (Sick Workers and Annual Leave Ref: LA/185/12) I set out members’ entitlement to receive payment or carry over their leave entitlement where they had been unable to take this due to illness.

This was as a result of the decision of the Court of Appeal that, regardless of whether a worker is employed by a public or private employer, if a worker is unable or unwilling to take the four weeks’ annual leave conferred by regulation 13 of the Working Time Regulations owing to sickness (i) he or she must be allowed to take it at another time

, if necessary by carrying over into a later leave year and (ii) compensation for untaken leave on termination must include compensation for such untaken leave, even if it relates to leave not taken in previous leave years.

I have asked the Officers to raise this matter with the companies where they are the lead negotiator. Recent responses have been received from Alstom Metro, London Underground, Tubelines and TFL.

London Underground, Tubelines and TFL have responded in similar vein. They have stated that in accordance with the recent case law to which we refer they acknowledge that employees who are unable, or unwilling, to take four weeks’ statutory annual leave in the relevant year due to sickness have the right to take it at a later date. Where such circumstances arise they confirm that they will permit the untaken statutory leave to be carried forward into the following year. They will also ensure that employees leaving the business with accrued but untaken statutory leave from the previous year receive a payment in lieu for the leave.

These companies believe this is a complex area and the Government has stated that it intends to amend the Working Time Regulations 1998 to reflect recent changes to case law. On that basis they have decided not to update their policies before the Regulations are amended. They have, however, assured the Union that they will apply the principles outlined to any individual cases that may arise.

The General Grades Committee find it ironic that these companies can produce identical letters on this issue but not afford identical rights to their employees on issues such as pensions and travel passes.

The General Grades Committee has asked me to confirm the policies outlined in these letters comply with the law. They also note with disappointment that that these companies are not publishing these policies which denies our members knowledge of their rights.

I would be obliged, therefore, if you would ensure that Representatives and members are made aware of these new entitlements. I would ask Representatives and Branches to try and be mindful that where a member is off sick that they remind that individual of their entitlement to carry their leave over to the following leave period if necessary. I know this will be difficult in all instances but if we can get the word out to as many members as possible then it will gradually become known within the industry. In the mean time I will write to these companies insisting that where an individual has not used their leave as a result of illness that they, the company, remind the individual employee and not make that individual lose their entitlement as a result of not claiming the outstanding leave.

Alstom Transport Metro Trains has simply confirmed that they will comply with all relevant legislation.

The General Grades Committee find this lack of clarity unacceptable and have asked me to write to the company seeking a detailed response of their intentions. I will inform you of their response once known.

This entitlement and London Underground, Tubelines and TFL’s acceptance that they will abide by the ruling has important implications for our members who have had the misfortune to be away from work as a result of illness. I would ask, therefore, that you advise as many members as possible of the Court of Appeal’s decision and their right to claim untaken leave.

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