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Sick workers and annual leave - does a request for leave have to be made?

26 July 2012 #Employment


The Court of Appeal has given a judgment in NHS Leeds-v- Larner, an important case on the law concerning the entitlement of long term sick workers to annual leave. The Court has upheld the earlier decision of the Employment Appeal Tribunal.

Mrs Larner, who worked for NHS Leeds as a clerical officer, went on sick leave on 5 January 2009. She did not return to work, and NHS Leeds terminated her employment on 8 April 2010 by reason of capability. Mrs Larner
brought a tribunal claim seeking a payment in respect of the statutory holiday entitlement that she did not use during her sickness absence. The employer argued that as she had not given notice during the leave year that she wished to take holiday she should not be entitled to that leave.

The Employment Appeal Tribunal found that a worker on long-term sick leave for a whole leave year is not well enough to exercise her "right to enjoy a period of relaxation and leisure" and that, in the light of the Pereda case in the European Court of Justice, her holiday entitlement had carried over to the next leave year.

However, after the EAT`s decision in Larner, the EAT heard Fraser v South West London St George`s Mental Health Trust [2012] IRLR 100. In that case, it found that Pereda does not assist a sick worker who does not ask their employer that they be allowed to carry over their untaken entitlement.

The Court of Appeal held that Mrs Larner`s case was "certain and clear" and made the following points:

  • Article 7 of the Working Time Directive provides that if a worker is prevented from taking annual leave due to illness they should be able to take it at another time.
  • Under Article 7 an employer is not permitted to make a payment in lieu of the lost leave while
    employment continued. An employer must therefore allow employees to carry forward her unused paid annual leave entitlement into the next leave year.
  • None of the ECJ decisions require a worker to make a request to take paid annual leave or carry it forward to another leave period.
  • The Working Time Regulations 1998 (which do not allow workers to carry over leave into subsequent leave years) could be interpreted to comply with Article 7 by reading the following words into the Regulations:

"Leave to which a worker is entitled under this regulation may be taken in instalments, but (a) it may only be taken in the leave year in respect of which it is due, save where the worker was unable or unwilling to take it because he was on sick leave and as a consequence did not exercise his right to annual leave."

Comment

So, does a worker on long term sick leave have to request the leave before it can be carried over into the next leave year, as found in Fraser? In the light of Larner, the answer is, it depends on the facts. The Court of Appeal in Larner distinguished between the facts of Larner and Fraser. In Fraser, the employee had returned to work after a period of sickness and had worked for almost a year before being dismissed. Therefore, she had had the "opportunity" to take her holiday in the year before her dismissal, whereas Mrs Larner had no such opportunity, having been dismissed while she was still on sick leave.

What is clear however, as the case law stands, is that employers should allow a worker to carry over their accrued holiday if they have been on long-term sick leave and have not had the opportunity to take that holiday. This is true even for private sector employers since the court approved the interpretation of the WTR 1998 to comply with Article 7.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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