Yes – they can now.
The Court of Appeal’s new ruling, NHS Leeds v Larner broadens an earlier ECJ decision allowing an employee who was off sick to have their leave carried forward into the next year. This used to only apply in the public sector, but now the European Court of Justice’s ruling has been extended to apply across all businesses.
The ruling notes that the purpose of entitlement to paid annual leave is to give the worker the right “to enjoy a period of relaxation and leisure”. By contrast, the purpose of entitlement to sick leave enables a worker to recover from an illness that has caused him to be unfit for work. The court had already ruled that a worker who is unfit for work before the commencement of a period of paid annual leave is entitled to take that leave at another time, which does not coincide with the period of sick leave.
The application of the more recent ECJ decision in Larner takes this one step further, concluding that the point at which the temporary incapacity arose is irrelevant. The Court of Appeal also confirmed that on termination, a worker is entitled to be paid in lieu of any annual leave outstanding from the period of employment, including leave not taken due to sickness.
Debbie Francis is the head of Employment at Lawspeed, and our team of qualified consultants deliver support every day through our legal helplines. If you are ever unsure about any aspect of employee entitlements, we’d like to help you to operate within the correct procedural frameworks.