NHS Fife Guidance On Carry Forward of Annual Leave Entitlement During Long Term Sick Leave

General Note

NHS Fife acknowledges and agrees with the importance of regular and timely review of policy/procedure statements and aims to review policies within the timescales set out.

New policies/procedures will be subject to a review date of no more than 1 year from the date of first issue.

Reviewed policies/procedures will have a review date set that is relevant to the content (advised by the author) but will be no longer than 3 years.

If a policy/procedure is past its review date then the content will remain extant until such time as the policy/procedure review is complete and the new version published, or there are national policy or legislative changes.

Agenda for Change(AfC): TERMS AND CONDITIONS BRIEFING

1. INTRODUCTION

The NHS Fife Agenda for Change Project Team / Steering Group previously agreed the arrangements which are to be applied to all staff in implementing the above AfC terms and conditions of service changes and the entitlement for staff on long-term sick leave to the full statutory amount of annual leave under the Working Time Directive (WTD).

NHS Circular CEL(2009)17 advised NHS Boards of a legal ruling which will affect local policies on the carry over of annual leave entitlement from one leave year to the next for staff on long term sick leave. This applies from 1 April 2009.

This means that from 1 April 2009, any employee who is not able to use up their leave entitlement in a given year because of sick leave will be entitled to the difference between any annual leave and / or public holidays taken before the period of sick leave began and the statutory entitlement.

The previous situation was that employees who are off on long-term sick leave could only carry over 5 days annual leave from one leave year into the next. The European Court judgement gives employees an entitlement to the full statutory amount of annual leave under the Working Time Directive (WTD), less any leave already taken within the leave periods in question.

This judgement supersedes the practice of staff only accruing annual leave whilst in receipt of Occupational Sick Pay.

2. WTR LEAVE ENTITLEMENTS

2.1 WTR Leave and carry forward entitlements will be calculated as follows:

When an employee commences employment part-way through a leave year, as a minimum he / she is entitled to WTR leave proportionate to that period of the leave year remaining.

From 1 April 2009, the WTR leave entitlement is 28 days, pro-rata. No additional entitlement requires to be provided for public / statutory holidays.

Any employee who is not able to use up their leave entitlement in a given year because of sick leave will be entitled to the difference between any annual leave and / or public holidays taken before sick leave began and the statutory entitlement. This should be carried over and added to the entitlement in the new leave year or, where an employee terminates and does not return to work, should be paid at full pay rates in lieu of leave.

Part-time employees should be treated similarly but the leave allocation should be pro-rata according to the days/hours worked reflecting their actual statutory leave entitlement.

2.2 It should be noted that staff are entitled to WTR statutory leave only and employees are not entitled to carry over (or be paid on termination) the full amount of leave provided by their NHS terms and conditions of employment.

2.3 Responsibility of Line Managers

• Line Managers must calculate and record the annual leave entitlement due at the end of each leave year.
• Line managers must maintain records of any outstanding leave due for staff on long term sick leave.
• Authorise requests to take leave in the following period and ensure that any carry forward leave is used as quickly as practicable.
• WTR leave due from previous leave years may be used to support a phased return to work following long term sick leave.
• Check that as a minimum, staff on long term sick leave are provided with an entitlement to the WTR leave (28 days per leave year), pro rata for part time staff.

2.4 Responsibilities of Employees

• Employees must give reasonable notice when requesting leave.
• Employees must complete the relevant department record for requesting leave and ensure that leave is authorised, before taking time off, or booking annual leave.

3. EXAMPLE OF CARRY FORWARD OF ANNUAL LEAVE

The following is a practical example of carry forward of annual leave work:

• An employee has already been off for one day public holiday in May 2015 and then 5 days annual leave in June 2015.
• The employee then goes on long term sick leave and they do not return before the end of the 2015/2016 annual leave year on 31 March 2016.
• On return to work on 1 April 2016, the employee would be entitled to 22 days leave from the previous year, (i.e. the difference between the statutory entitlement of 28 days and the 6 days taken before the period of sick leave commenced).
• They would also be entitled to their contractual annual leave from their return to work, but any period prior to the return should be calculated at the WTR minimum leave entitlement.
• The leave carried forward should be added to the employee’s entitlement in the new leave year or, in the event of an employee terminating and not returning to work, payment should be made in lieu of outstanding leave.
• This entitlement applies regardless of whether the employee continues to be in receipt of occupational sick pay.
• The leave entitlement in the year of returning to work, notwithstanding any carry forward, should not exceed the normal contractual entitlement to annual leave and public holidays, e.g. 22 days carried forward plus 27 days due from April 2016 = 49 days due from April 2015 to 31 March 2016.

4. QUERIES ABOUT THE APPLICATION OF WTR ANNUAL LEAVE ENTITLEMENT

If there are any queries about the application of this CoS, please contact your HR Officer.