A recent case (NHS Leeds v Mrs J Larner) heard in the Employment Appeal Tribunal (“EAT”) pondered whether a worker, who is away on sickness absence, is entitled to holiday pay if they have not actually submitted a request for the holiday to be carried over before the pay year ends. It was determined that no formal request for holiday entitlement in these circumstances is required.
Employers will note that since the decision by the European Court of Justice in the famous case of Stringer (2009), employers have been obliged to pay employees and workers for holiday leave accrued but untaken where an employee or worker has been away on long-term sickness absence. This case relates to the rules set down in Stringer.
Mrs Larner had been on sickness absence for the entire pay year. The policy of her employers was that annual leave could not be carried over into the next year unless there were exceptional circumstances and application for this to occur had to be made in writing. Mrs Larner was dismissed on the grounds of incapability due to ill health (after a lengthy process had been carried out to attempt to assist her get back to work). Upon her dismissal, Mrs Larner did not receive any holiday pay at all and this was said to be because her entitlement had been lost after the end of the year because she did not request it to be carried over.
This was found to be wrong by the EAT. Mrs Larner was entitled to holiday pay and she did not need to make any written request in regard to this. Mrs Larner, being sick for the entire year, did not have an opportunity to have a period of holiday and therefore had a right to carry it over without any need for a formal request. When her employment terminated, she was then entitled to payment for the holiday entitlement which she had been unable to take.
Interestingly, it was said that it may be different for a fit and able worker who fails to make a request to carry over untaken holiday, because he/she would have had an opportunity to take up their entitlement.
Lawspeed can help you with issues surrounding sickness absence and holiday pay. Please call us for further assistance on 01273 236 236.