Public and Commercial Services Union

DWP/BB/082/07

DWP policy clarified

Two clarifications have been introduced to the DWP sick leave procedures. A new paragraph 4.19 is a simple statement of current DWP policy that annual leave cannot be taken during sick absence. A revised paragraph 4.17 clarifies the application of extension of paid sick leave.

Extension of paid sick leave

Procedures for extension of paid sick leave are published in paragraphs 4.15 to 4.18 of the DWP sick leave procedures.

When normal full and half sick pay has expired due to a long absence, the manager may authorise an extension of paid sick leave of up to 40 calendar days for:

• Minor ailments unrelated to the original illness or injury
• Continuing treatment of the original illness or injury, which requires time off work to administer
• Debilitating side effects, recovery from which requires time off work.

This extension should not be granted to employees who have exhausted their sick pay entitlement by a variety of illness.

In addition to the initial 40 days extension up to a further 20 calendar days paid leave may be allowed for continuing treatment of the original illness or injury. This will be considered by the manager when it is necessary for the employee to be away from work to receive treatment or recover from the side effects.

Extensions are subject to a maximum of 60 days paid sick leave within a 4 year period starting from the date of your return to work from the original long illness (para 4.17).

Annual leave during sickness

Branches were provided with an update on the statutory annual leave legal challenge in circular DWP/BB/144/06. The legal challenge remains to be decided at the European Court of Justice. The key issue to be resolved is whether or not there is a legal entitlement under the working time directive to take paid annual leave during a period of absence due to sickness.

The Court of Appeal’s decision in Commissioners of Inland Revenue v Ainsworth and others [2005] EWCA Civ 441 ([2005] IRLR 465) overruled the EAT’s decision in Kigass Aero Components V Brown EAT/481/00 ([2002] IRLR 312), with the result that workers on long-term sick leave are not entitled to take holidays during that sickness absence.

The ruling will affect those whose contractual sick pay has expired and who for a while after the Kigass decision would have been entitled to full pay for days that they chose to take as holiday during that period. The court held that a worker absent on long-term sick leave could not be said, at some arbitrary period during that absence, to be on leave.

Additionally, leave in those circumstances could not be said to serve the health and safety purpose intended by the working time directive.

European court will decide

The PCS supported legal action is now listed as HM Revenue and Customs v Stringer and others, formerly Commissioners of Inland Revenue v Ainsworth (ECJ). The House of Lords decided to refer this case to the European Court of Justice (ECJ) to resolve the issue of whether paid annual leave can be taken during a period of sick leave.

The PCS case joins one from Germany on the same issues so the legal dispute will be decided by the ECJ under the case of Gerhard Schulz-Hoff v Deutche Rentenversicherung Bund.

The ECJ decision will be reported to Branches when received.

Advice for members

The DWP has recognised that whilst it has been decided to withdraw statutory annual leave for the above reasons, individuals may continue to make claims. PCS advice to members is that individuals should make a written claim in the above circumstances, as this will preserve their entitlement should the legal situation be resolved in their favour. When the DWP introduced compliance with the Kigass decision in DWP HR circular 16/2002, the department stated in paragraph 16 that:

“backdated claims for carry over or payment of unused statutory leave cannot be made for previous years unless there is evidence that a request was made and refused at that time.”

Members should therefore continue to claim when appropriate, and keep the written refusal which they should receive, so that a backdated claim may be made should the legal situation be resolved in our favour.

Evidence for review

Branches which have problems with delivery of the DWP sick leave policy and procedures should provide evidence to PCS DWP group office as evidence of problems is essential to negotiate improvements.