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Sick worker's entitlement to statutory holidays carried over to next year

photo_of_hayley_at_desk_2The Employment Appeal Tribunal (EAT) has upheld a tribunal's decision that a worker, who had been on sick leave for an entire leave year and had not taken any holidays during that period, was entitled to a payment in respect of that year's unused holiday entitlement.  Hayley Bloodworth, Managing Partner of Proactive Employment Lawyers, reports:

NHS Leeds v Larner is authority for the point that workers are entitled to statutory holiday and holiday pay even though they have been off for an entire leave year.  In this case, the fact that the claimant had failed to request a holiday during the relevant leave year did not mean that she lost her right to a payment. 

The claimant, who had been off sick for over a year, was dismissed by employer due to her ill health.  On terminating her contract, the employer did not make any payment in respect of untaken leave, due to the fact that no formal request for leave had been made.  The main issue before the EAT was - did the claimant's failure to make such a request under Regulation 15(1) of the Working Time Regulations 1998 (as amended) preclude the normal entitlement to payment in lieu of annual leave following dismissal?

The EAT took the view that it did not.  In its view, there was no distinction between the claimant's situation and that of the worker in the European Court of Justice, Pereda v Madrid Movilidad SA.  In the circumstances of that case, the worker's holiday entitlement carried over to the next leave year, even though she did not expressly request to carry over her entitlement.

In Larner, the EAT thought that as Mrs Larson had been unable to take her annual leave by reason of sickness, she retained her "right to enjoy a period of relaxation and leisure, or payment in lieu on dismissal, in the following year.

In May 2011, as part of its 'Modern Workplaces' Consultation, the Government has proposed that, in light of recent European case law, such as Pereda, workers unable to take their annual leave during the current leave year should be able to carry it forward into the following year.  The Government has proposed that carry-on should be limited to the statutory holiday leave.


1. The EAT's decision in Larner is one of several cases on the management of sickness absence that we will be discussing at our next lunch bite, "Effective Sickness Absence Management - Employment Law Update".  Click here for details.