If an employee is ill over a Bank Holiday are they entitled to receive time off in lieu?
Employees are statutorily entitled to 5.6 weeks paid holiday in any annual leave year (Working Time Regulations 1998). That figure is inclusive of bank holidays – 28 days for a full time employee and pro rata for part time employees. Case law shows that if an employee is ill during a period of annual leave then the period of time they were ill must be reimbursed (Pereda v Madrid Movilidad 2009). This is European Court of Justice case law to which the UK is still bound.
So, if your employees do not normally work over a bank holiday then they may be entitled to receive time off in lieu if the bank holiday falls within a period of authorised sickness absence. For clarity, employees who do not work on bank holidays receive 20 days paid annual leave plus the 8 bank holidays which equals the required 28 days over the annual leave year.
If your employees normally work over bank holidays then their sickness absence will simply be a normal sick day(s) and they will receive their 28 days statutory annual leave as normal.
(1) Ahmed broke his leg and was unable to work during a period that included Easter. Ahmed does not normally work on bank holidays so he will received 2 days reimbursed annual leave.
(2) Mary usually works during bank holidays so when her sickness absence included Easter those days formed part of her authorised sickness absence and her annual allowance continued to accrue as normal.
You will, of course want proof that your employee was ill over a Bank Holiday; time off in lieu will only apply if it is authorised sickness absence, that is they are able to provide a sick note from their medical advisor.
There is no law that says employees must be allowed paid time off over a bank holiday; employees may be required to work. The statutory requirement is to provide 28 days (or pro rata for part time employees) paid annual leave in any annual leave year. The Working Time Regulations allow employers to decide when those annual leave days are taken and many decide that 8 of those days will be the national bank holidays. Of course, most reasonable employers negotiate appropriate times for an employee to take annual leave but often designate bank holidays and a period over the Christmas as times when an employee must take annual leave.
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