Under the Holidays Act 2003, every full-time or part-time employee is entitled, as a minimum, to five days’ sick leave per year. The employee needs to have worked for the employer for six months before they’re eligible. Once they qualify, the employee is entitled to five days for each 12-month period thereafter.
An employee’s sick leave entitlement accumulates, if not used, up to 20 days. This means an employee can have a maximum of 20 days of sick leave available (unless the employer has agreed to enhanced sick leave entitlement in the employment agreement).
Even casual employees could potentially become entitled to sick leave after six months’ casual employment, provided:
- They have worked for an average of 10 hours per week over the six months;
- Including at least one hour per week or 40 hours per month.
In any 12-month period where the casual employee’s work pattern doesn’t meet the above requirements, then no additional sick leave will arise.
So, when looking at casual employees and sick leave entitlement, first check whether they worked intermittently with gaps of more than a week at a time – that will determine whether you need to pay them sick leave or not. Of course it will also depend on whether they were expected to work on that particular day or not. If the answer is ‘No’ then no payment is due.
Leave is not Pro Rata
Leave is not calculated on a pro rata basis. Every employee is entitled to five days’ sick leave per year, i.e. five days away from work, if they or a dependent are sick or injured.
What constitutes a “day” depends on the individual and their normal hours of work on the day they’re sick. If they normally work a seven-hour day, then it’s seven hours. If they work 10 hours then it’s a 10-hour day. Sick leave would be paid at the rate the employee would normally have earned for the day, i.e. relevant daily pay for the day in question.
So a part-timer who works only three days a week is still entitled to five days’ sick leave; that would mean almost two weeks away from the workplace if they took all five days at once. A casual employee who works only one day a week could still qualify for five days’ paid sick leave if their employment extended beyond six months.
Public Holiday and Sick Leave
If an employee was due to work on a public holiday, but was sick and unable to work, that day is to be treated as an unworked public holiday and should be paid at the employee’s relevant daily pay. No sick leave is deducted from the employee’s entitlement.
Annual Holidays and Sick Leave
If an employee (or dependant) falls ill while on annual leave, the employer can agree to treat that period of leave as sick leave, but there is no obligation to do so.
However, if the illness or injury occurs prior to the agreed annual leave, then the employer must allow the employee to take that time as sick leave and it will not be deducted from their annual leave entitlement.
An employee can ask that annual leave be used when sick leave has run out, but cannot insist on it. Similarly the employer cannot insist that the employee takes annual leave to cover the time off work. Both parties must agree. If the employee doesn’t want to use any annual leave but has no sick leave, then the period off work will be unpaid.
