I have a member of staff who is contracted and paid for 44 weeks per year.
They have to make up an additional 175 hours, 5 weeks across the year to be able to take the 5 weeks leave.
If they have been off on long term sick and have been paid for the 44 weeks but have not made up the 175 hours, can they still take the time off ?
So they have to work 44 weeks per annum to get 5 weeks holiday without additional pay, which means their paid weeks is actually 49 per annum. Firstly, I would double check their holiday entitlement has been calculated correctly compared to an all year round employee, as someone who gets the minimum 5.6 weeks annual leave per annum only works 46.4 weeks, and prorating this for someone who works 44 weeks is entitled to the equivalent of 5.5 weeks annual leave.
To answer your question though, if you look at it like an all year round person, who would work say 45 weeks per year and gets 7 weeks holiday to be paid 52 weeks per year. If they were off for the whole year, would you expect them to work 7 weeks to make up time? No, because they are sick and their holiday entitlement roles over to the next year where they can take the time off paid.
For part year workers, they should either be paid for the rolled over holiday, or be allowed to take additional paid time off.
I assume this is a TTO contract or some other form of annualised hours contract that requires the employee to work an additional amount of hours to accrue enough holiday entitlement to be paid throughout their period of holiday.
In this case, the employee has been on LTS so they have technically worked 44 weeks (albeit off sick) and have therefore not had the opportunity to make up the 175 hours for their period of holiday to be paid.
When we break it down like this we find that the basic answer to the question "can they still take the time off?" is "yes, they can". But...
It's not all going to be paid, because they haven't accrued enough TOIL for the absence to be paid in full.
