05 August 2011 #Employment
It has been held in NHS Leed v Larner (2011) that a worker, who had been off sick for a full leave year, was still entitled to payment in lieu of untaken annual leave on termination of employment, despite not having submitted a request for holiday when she was off sick.
The question for the EAT was whether the failure to make such a request under Regulation 15(1) of the Working Time Regulations 1998 (as amended) precluded the normal entitlement to payment in lieu of annual leave following dismissal. The EAT concluded that it did not.
An analogy was drawn with the ECJ case of Pereda v Madrid Movilidad in which an employee had not been able to enjoy time off when she was injured during a pre-arranged holiday. In this case, the ECJ held that Ms Pereda should have been entitled to take her holiday at a later date, even if this meant carrying this over into the next leave year, despite not expressly requesting carry-over. Similarly, the EAT held that as Mrs Larson had been unable to take her annual leave by reason of sickness, she still retained her "right to enjoy a period of relaxation and leisure", or payment in lieu on dismissal. Just because she failed to request holiday during the leave year, did not mean she lost that right.
It is clear following this case, that employers cannot avoid paying holiday pay to a worker on long-term sick leave on termination, simply because they failed to submit a formal leave request. Perversely, a fit worker may miss out if they fail to book holiday as they would have had the opportunity to take this had they requested it!
Until legislation resolves some of the complexities surrounding holiday pay and sickness, expect more litigation...