Employees are entitled to four weeks’ paid annual leave per leave year under Article 7 Working Time Directive (“basic annual leave”) and an additional 1.6 weeks under Article 16 of the Working Time Regulations (Northern Ireland) 2016 (“additional annual leave”). For full time workers this equates to 28 days. Any extra annual leave should be specified in the contract of employment (“contractual annual leave”).

Recent case law has confirmed that an employee will accrue annual leave entitlement under the Working Time Directive whilst off on sick leave, even if they are off on sick leave for the whole leave year. Most recently the ECJ in Stringer v HMRC [2009] held that workers off on sick leave will continue to accrue full annual leave rights. Although the ECJ only dealt with basic annual leave and did not provide guidance on additional annual leave under domestic regulations, previous Employment Appeal Tribunal decisions in Kigass Aero Components v Brown 2002 IRLR 312 and Canada Life v Gray and Farrar (UKEAT/0657/03/SM) held that additional annual leave accrues during periods of long term sick leave.

However, the position in relation to contractual annual leave should be expressly stated in employment contracts, which gives employers scope to prevent annual leave above the statutory minimum under the Working Time Directive and Regulations accruing during periods of sick leave.

Further, employees cannot be paid in lieu of accrued annual leave except on termination of employment.