We have reported in former Employment Briefs on the thorny issue of holiday entitlements for workers on sick leave, an area affected by UK and European law. The recent EAT decision in NHS Leeds v Larner has made clear that workers on long term sick leave do not need to actually submit a request for annual leave in order to be entitled to it.
Before this decision, it was already clear that annual leave entitlement did accrue during a period of sick leave - the EAT now had to decide whether a worker would forfeit that entitlement if they did not submit a request for that annual leave before the end of the pay year.
In this case, Mrs Larner was signed off sick for the whole of the year 2009/2010. She did not take all of her annual leave. When Mrs Larner was dismissed (for ill-health), the Trust refused to make a payment to her for her untaken leave, on the grounds that she had not formally put in a request for it. They argued that because Mrs Larner had not made any request to take annual leave, her entitlement to it was lost at the end of the pay year (both as a matter of contract and under the Working Time Regulations). They argued that it followed that she was no longer entitled to be paid in lieu of the unused annual leave for that year on termination of her employment.
The EAT found that as Mrs Larner had been sick, she had been unable to take her annual leave for the whole of that year - she had been unable to exercise “her right to enjoy a period of relaxation and leisure”. It was found that she had the right to have her leave entitlement carried over to the following year, and that she had that right without having to make a formal request for the leave to be carried over. This was so even where the contract required workers to put in requests for annual leave before the end of the holiday year, and prohibited carry-forward without express permission, and where the Working Time Regulations provide that employees have to give notice of their intention to take annual leave. Even in those circumstances, if a worker is off sick for the whole of a pay year and does not submit a request for their annual leave before the end of that year, they will nonetheless retain their entitlement to their statutory annual leave. Mrs Larner was therefore entitled to be paid for the annual leave which she had no opportunity to take.
The question which follows on from the EAT decision is for how long can a sick worker carry forward unused annual leave? In a recent European opinion of the Advocate General, the issue was what should happen to a worker’s holiday entitlement under the Working Time Directive when a period of continuous sick leave straddles more than one leave year. Can workers carry forward accumulated but untaken annual leave indefinitely through their period of sickness?
The Advocate General pointed out that the longer that holiday entitlement is allowed to accumulate, the more remote it becomes from the objective of the legislation, which is to ensure that workers are entitled to appropriate periods of rest and recuperation during their working lives. Her conclusion was that the Working Time Directive does not stop member states from fixing a period after the end of the leave year by which point accumulated rights need to be exercised or lost.
It will remain to be seen whether the ECJ adopts this opinion. The UK government’s consultation on workplace issues which closed last month included a section on amending the Working Time Regulations to bring them in line with European legislation and allow the carry-over of unused statutory holiday. The question of “for how long” remains unclear.