Legality of contract as against employment law. Carry over of annual leave, following long term sickness.

[LoveThe]

According to ACAS guidance, if you're on long-term sick leave, you can carry forward up to four weeks of unused statutory holiday, which must be used within 18 months of the end of the leave year in which it accrued Acas.

My employer (LA) has carried over only four days after my long-term sick absence.

Legally, is the employer allowed to override the ACAS guidance in this way? Does ACAS guidance carry the force of law?"

How long were you on sick in comparison to the leave year?

I had this happen the end of last year, I had 3 weeks left and they only carried over 5 days that had to be used by the end of March or I lost them. That’s the company policy and with the current climate at work, I didn’t baulk against it.

The ACAS guidance is based on the Working Time Regulations which is the law. Your employer cannot override it.

If a worker working regular hours and all year round is unable to take some or all of their statutory holiday entitlement as a result of being off sick, then the worker will be entitled to carry forward up to 20 days of their untaken leave into the following leave year, provided it is then taken by the end of the period of 18 months starting from the end of the leave year in which it was accrued. These 20 days should be paid at the ‘normal’ rate.

https://www.gov.uk/government/publications/simplifying-holiday-entitlement-and-holiday-pay-calculations/holiday-pay-and-entitlement-reforms-from-1-january-2024#carryover-of-leave

My annual leave runs 01 April to 31 March. I have 34 days leave per year. I will have used some leave prior to my absence.

I was absent from mid January 2025 until mid July 2025.

I can understand why they have carried forward 4 days. The WTR do not allow carry over of contractual leave (eg 26 days + 8 bank hols), only statutory leave, which is 20 days. So the calculation for carry over would be: 20 days / 12 months * 2.5 months for mid-jan to 31 Mar = 4 days.
As you are within the current new holiday year, presumably you can still take your normal 34 days, plus 4 carry over days before the end of March 2026.

The law isn’t worth the paper it’s written on, and I think you’ll find that almost all employers have similar policies.

Where I work it’s standard for employees to lose holiday regardless of whether they’ve been off. The reason for that is that staff are able to purchase additional holiday, so many do, and book it all up before others get the chance to even book in their statutory entitlement, meaning that some staff end up with one or two weeks extra holiday so 6/7 weeks off while others aren’t even able to take their actual holiday. It’s a nightmare.

I’ve been off sick since January and I’m about to start my phased return. I haven’t had any annual leave apart from a week I booked off at the beginning of the year for the end of the year iyswim. I’ve been told that the AL calendar is now fully booked, other than the day we’ll be allowed to book off over Christmas, and that I’ll be entitled to carry over five days which isn’t negotiable.

Have spoken to the union (IME unions are generally useless anyway) who have said that they’ve had similar come through from other employees, but due to staff shortages and not knowing what the future holds, carrying over holiday isn’t being permitted.

And there’s literally nothing you can do about it, it’s all very well quoting the law, but taking legal action against your employer A, is costly, and B, isn’t going to build a good relationship between you and them going forward, and when you’ve had a considerable period of absence, even if it is entirely understandable, new employers aren’t exactly going to be looking to employ someone who’s been off for nine months and has then taken their employer to court.

So in my case I’ve just cut my losses.

What leave do you think you should have carried over?

@LoveThe This is slightly complicated so bear with me.
Leave is separated into 3 elements:

• Statutory leave under Working Time Regulation 13 = 4 weeks or 20 days
• Statutory leave under WTR 13a = 1.6 weeks or 8 days
• Occupational leave = any days above the total statutory leave of 5.6 weeks.

The Case Law relates to the Regulation 13 leave only.

The logical order to take leave is Reg 13, Reg 13a then occupational.

From 1 April 2024 to 31 March 2025 how many days leave did you take?You must include in this Bank Holidays so as a minimum you would have taken 7 BH (EM, MD, SBH, ABH, XD BD and NYD). Deduct this from the 20 days Reg 13 leave, if you are left with 4 days or less then they have applied the rules very carefully but correctly. If you have taken 24 days leave then they have given you the 28 days statutory by carrying over 4 days.

I hope this makes sense.

The four days isn't really that relevant. I work four days a week. For any unused leave at the end of the year, we can only carry forward 5 days ( 4 in my case, pro rata). The rest is ‘lost’.

It was with this being connected to long term sick that I was questioning whether they are following the rules.

@Harassedevictee - I would need to check accurately the number of days leave I did take. I would guess at eight.

@Never2many - there is no facility to buy extra leave.

@LoveThe If you only work 4 days then the 20 days becomes 16.

Does the 8 days include BH. If not what is your Non-working day?

No BH in the leave taken @Harassedevictee.

Applied for leave excludes my none working day. So 8 days covers a two week absence.

Bank Holiday leave is applied for seperately, if required to cover leave (but doesn't have to be used for a BH.

Are you saying the carry forward is based on statutory leave only? (rather than a full entitlement).

For any unused leave at the end of the year, we can only carry forward 5 days ( 4 in my case, pro rata). The rest is ‘lost’.

This is a normal policy [indeed it is was brought in to stop people not taking leave year after year and then going away for months on end]. What days do you think you should be able to carry over?

Are you saying the carry forward is based on statutory leave only? (rather than a full entitlement).

Yes.

I had read the ACAS guidance, where it states that for long term sick, up to four weeks can be carried forward.

If that was the case, then I have more than 4 days leave ‘left’ which I haven't been able to carry forward.

I was trying to work out why? I suppose I just want to either be able to question HR about whether my leave has been carried forward correctly under long term sickness or not.

Because you've not been off for a full year.

So you used all the bank holiday leave for 24-25 before going off sick.

Your statutory leave for 24-25 would be 16 days. If you took 8 there were 8 remaining and you’re entitled to ask why the other 4 haven’t been carried over.

Long term sick is defined as more than 4 weeks in the LA policy. I was absent more than 4 weeks.

Are you expecting to get last years and this year’s leave after being absent for 6 months? Who would cover your workload if you have been off for 6 months and then plan somewhere in the region of 8 weeks leave? You’ll be off more than you’re there working!

PP are correct. Your employer will assume all leave taken was statutory rather than contractual. You will only be allowed to carry over whatever is left of statutory holiday.

If you work for LG then you should be a union member? They should be able to help with this.

4 days would be correct by my calculations because it doesn’t actually matter how many days you get, all that matters is the statutory & it goes based on how much time off you had, other leave taken & opportunity to have used other leave. E.g. if you’d chosen not to take any leave Jan-October then went off sick Nov-Dec in a Jan-Dec leave year you can’t just carry it all over as you did have opportunity to take it.

My understanding is it’s Statutory Regulation 13 leave only, which is 4 weeks. For you that is 16 days. You have taken 8 days leave = 16-8=8 days left. Potentially they also deduct BH of up to 7 days = 1 day left of your Statutory Regulation 13 leave to carry over.

It’s very difficult to work out exactly with so little information but 4 days doesn’t seem unreasonable.

It isn't as simple as that either…we can't take term time holidays, so less opportunity to use the leave entitlement when I have been at work.

The breadcrumbing is really unhelpful.

how much had you taken before you went sick? I assume quite a bit, given you were quite far into the leave year?

I would suspect you’d taken 4 weeks’ leave, minus the 4 days (and it can include bank holiday entitlement) and so the carry over might well be correct

the right to carry over is only the balance of the 4 weeks minimum statutory leave under WTD that you weren’t able to take before the absence.

She doesn’t know. She hasn’t checked.