Accrual of annual leave during sick leave
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- Created: Friday, August 28 2015 07:10
The Minister for Business and Employment, Ged Nash, formally announced that, from 1st August 2015, Irish workers will be able to accrue annual leave during sick leave.
The commencement of Section 86 of the Workplace Relations Act, 2015 (the “2015 Act”) provides that Irish employees who are absent on certified sick leave are entitled to accrue annual leave and take such leave “within the period of fifteen months after the end of that leave year”. Such accrual is limited to the twenty statutory annual leave days and does not entitle an employee to accrue contractual annual leave days over and above this amount (unless otherwise specified by the employer).
Until the start of this month, the Organisation of Working Time Act, 1997 (the “OWT Act”) 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 new legislation is in response to Court of Justice of the European Union rulings on accrual of leave entitlements during sick leave.
In terms of any existing claims in respect of accrued annual leave during sick leave, section 8 of the 2015 Act expressly provides that the 2015 Act will not apply to any dispute presented or referred to a Rights Commissioner before 1st August 2015. However, employees that are currently out on certified sick leave may now claim an entitlement to accrue statutory leave in respect of their employer’s current leave year (e.g. January to December 2015), notwithstanding that the OWT Act is only revised as of 1st August 2015.
In light of this change in the legislation, employers should review and update Contracts of Employment, Employee Handbooks, Sick Pay and Annual Leave policies to ensure that they are compliant with the revised national law. Employers should be clear in their documentation that the accrual of annual leave applies to statutory leave entitlements only and not to contractual leave.