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Legal Updates

Employees On Long Term Sick Must Claim Holiday In Order To Be Paid

08 November 2011 #Employment

The Employment Appeal Tribunal  has held in In Fraser v Southwest London St George’s Mental Health Trust that an employee on long-term sick leave must request annual leave, during the year in question, in order to be paid for it. The request for annual leave must be in accordance with Reg 15 of the Working Time Regulations 1998.

The case concerns Mrs Fraser who was dismissed following a long period of sick leave. She injured her knee in an accident in November 2005. Her entitlement to sick leave expired in August 2006 and she was certified fit for work in November 2007. She was dismissed during 2008 where she was paid in lieu of untaken leave accrued in her final leave year only but paid nothing for the previous two leave years. Mrs Fraser brought a claim seeking payment of four weeks’ leave for each of those two years

The EAT held that the ordinary rule of ‘use it or lose it’ still applied and that there was nothing in the Reg 14 Working Time Regulations (which gives a right on termination to pay in lieu of untaken leave) that allows for claims for holiday entitlement not taken in previous years.

This meant that she had accrued leave in those two years however she had to trigger the entitlement, by giving notice under Reg 15, to be paid for it, which she had not done.

Please click here to find the Employmentbuddy factsheet on the Working Time Regulations.

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