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Sickness, Holiday Pay and Carryover

Summary: When a worker has not been able to take paid annual leave due to sickness during the year in which it accrued, carryover of that annual leave will be permitted.

Summary of Facts:

Decisions:

The ET and EAT decided in Mrs Larner’s favour.

NHS Leeds appealed to the Court of Appeal which held that:

  1. Mrs Larner was entitled to paid annual leave in the leave year 2009/10.
  2. She was prevented from taking her paid annual leave because she was sick.
  3. She was entitled to carry her untaken paid annual leave forward to the next leave year in 2010/11 without making a prior request to do so.
  4. As her employment was terminated in that year, before she could take the carried forward leave she was entitled to payment on termination for the paid leave she had been prevented from taking.

Do Employees Have to Make a Specific Request to Carryover Holiday Where They Have Been Unable to Take it due to Sickness?

In short, this decision confirms that employees do not have to make a specific request to carryover holiday in these circumstances.

This case has highlighted that despite UK legislation in relation to holidays being incompatible with the corresponding European legislation, the provisions of European law are being held to override the UK provisions. This has resulted in several employee victories on the issue of holidays and sickness. It has also highlighted that private organisations should consider that the provisions of this decision will also apply to them despite not being directly affected by European Law.

Going forward, our advice would be to allow carryover of holiday in circumstances similar to those of Mrs Larner’s irrespective as to whether the employee has specifically requested to carryover the holiday. Unfortunately, this case failed to address whether carryover would be in relation to the amount of annual leave provided for under EC Law (4.8 weeks) or the amount under UK Law (5.6 weeks). If you find yourself considering this specific issue, we would strongly advise that you seek legal advice as the answer will often depend on the particular circumstances of the case, the contract of employment and the culture of the organisation.

All employers should keep abreast of changes to holidays and sickness given that the Government is proposing a number of changes to the annual leave provisions of the Working Time Regulations to bring them in line with European Law. If you wish to be added to Floyd Graham & Co Solicitors’ mailing list you can be sure to receive important updates as and when they happen.

Rachael Jessop, Solicitor

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.  

 

Updated: by FG Solicitors
Call us on:  0808 172 93 22

SICKNESS, HOLIDAY PAY AND CARRYOVER

Summary: When a worker has not been able to take paid annual leave due to sickness during the year in which it accrued, carryover of that annual leave will be permitted.

Summary of Facts:

  • Mrs Larner worked for NHS Leeds from 17 April 2000 as a clerical officer.
  • Her leave year ran from 1 April to 31 March.
  • On 5 January 2009, she was diagnosed with ME and depression and went off sick.
  • During the year 2009/10, she made no request to take paid annual holiday or to carry forward untaken holiday in to the next year.
  • On 8 April 2010, NHS Leeds sent a letter to Mrs Larner informing her of their decision to dismiss her on grounds of incapability due to ill health. She was paid in lieu of the annual leave that had accrued but not taken during 2010/11 but not the annual leave from 2009/10.
  • Mrs Larner brought a claim for payment of the annual leave from 2009/10.

Decisions:

The ET and EAT decided in Mrs Larner’s favour.

NHS Leeds appealed to the Court of Appeal which held that:

  1. Mrs Larner was entitled to paid annual leave in the leave year 2009/10.
  2. She was prevented from taking her paid annual leave because she was sick.
  3. She was entitled to carry her untaken paid annual leave forward to the next leave year in 2010/11 without making a prior request to do so.
  4. As her employment was terminated in that year, before she could take the carried forward leave she was entitled to payment on termination for the paid leave she had been prevented from taking.

Do Employees Have to Make a Specific Request to Carryover Holiday Where They Have Been Unable to Take it due to Sickness?

In short, this decision confirms that employees do not have to make a specific request to carryover holiday in these circumstances.

This case has highlighted that despite UK legislation in relation to holidays being incompatible with the corresponding European legislation, the provisions of European law are being held to override the UK provisions. This has resulted in several employee victories on the issue of holidays and sickness. It has also highlighted that private organisations should consider that the provisions of this decision will also apply to them despite not being directly affected by European Law.

Going forward, our advice would be to allow carryover of holiday in circumstances similar to those of Mrs Larner’s irrespective as to whether the employee has specifically requested to carryover the holiday. Unfortunately, this case failed to address whether carryover would be in relation to the amount of annual leave provided for under EC Law (4.8 weeks) or the amount under UK Law (5.6 weeks). If you find yourself considering this specific issue, we would strongly advise that you seek legal advice as the answer will often depend on the particular circumstances of the case, the contract of employment and the culture of the organisation.

All employers should keep abreast of changes to holidays and sickness given that the Government is proposing a number of changes to the annual leave provisions of the Working Time Regulations to bring them in line with European Law. If you wish to be added to Floyd Graham & Co Solicitors’ mailing list you can be sure to receive important updates as and when they happen.

Rachael Jessop, Solicitor

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.