Sick leave and the accrual of holiday payPosted in : Seamus Says - Employment Law Discussion on 2 February 2018
Q: We recently dismissed an employee who’s been on sick leave for six years. When we contacted our payroll, they said there was no holiday pay owed. Are we obliged to pay a certain amount of holiday pay even if this employee hasn’t worked for six years?
Seamus: Well, I think ultimately there is an issue. I mean, I’m not saying that it doesn’t happen, but there is an issue there where you have an employee out for six years and the matter hasn’t been dealt with if they’ve been out for long-term sick leave. You would hope that as of good practice, there would be appropriate steps taken in terms of resolving that. Maybe there is holiday pay that has accrued. I don’t necessarily think that it will be in any way close to six years that will be owed. We’re probably talking within the past year and maybe the 18 months and figure common out there. Certainly, where there is an employee that’s off on sick leave, their holidays accrue during that period. We know the various case law that substantiates that.
Scott: The carryover isn’t for the full six years.
Scott: It could be over 18 months plus whatever this year is worth.
Seamus: Yes. Exactly.
Scott: If they haven’t taken it, it would continue being there. There is an issue about frustration. If there hasn’t been contact with people, do they still have an extant contract?
Seamus: Yes, exactly. With frustration of the contract, you’d be looking at . . . six years is a very long period, but you’d be looking at maybe getting the support of medical evidence and finding out why the person hasn’t been able to work for six years and trying to deal with that. A lot of employers, and certainly from what I see now, where there has been a sort of lengthy enough period of sick leave, they’ll have their employee examined, they’ll see if there is a foreseeable date for returning to work where there’s not that try to force the issue in terms of frustration of the contract because they know the liability is continuing to build on holidays.
Scott: Some employers just don’t want to pay the notice because if they dismiss somebody due to ill health, it’s not certain but in this case, you’ve got to have at least six weeks’ notice. It could be longer if they’ve been employed for 12 years it could be up to 12 weeks.
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