NHS Leeds v Larner CA A2/2011/1953

Mrs Larner was a clerical officer who went on paid sick leave in January 2009. She was dismissed in April 2010 but was not paid for her untaken annual leave in the 2009/10 leave year. Before the EAT and the Court of Appeal her employer NHS Leeds comprehensively lost their appeals against having to pay for this accrued annual leave.

The parties agreed that Mrs Larner was unable to take her annual leave in 2009/10 because of her sickness and as she was an NHS employee she could rely on the direct effect of Article 7 of the EU Working Time Directive that every worker is entitled to 4 weeks’ paid annual leave. The Article makes no mention of the need for a leave request if the worker wishes to carry this forward to another leave reference period due to absence on sick leave. Applying ECJ case law it was held that she was entitled to take her annual leave at another time when she was not sick, if necessary after the leave year in which it had accrued. There is no European ruling however that she had to make a prior request to carry forward the leave. Any contractual requirement to make a formal request is overridden by Article 7.

Key point: Employers will not be able to write‑off untaken holiday leave for long term sick employees at the end of each holiday year. On termination of employment those employees will be entitled to a cumulative and possibly significant payment in lieu of untaken leave accrued in preceding years. This is the case even where the employee has ceased to enjoy company sick pay and other benefits. Employers may wish to ensure that this carried over accrued holiday leave is taken promptly after they return to work.

  • Asociación Nacional de Grandes Empresas di Distribución (ANGED) v Federación de Asociaciones Sindicales and ors Case C‑78/11

In this case the ECJ held that a worker is entitled to take paid annual leave which coincides with sick leave at a later time irrespective of the point at which the incapacity for work arose. This followed the Pereda case where a worker who was on sick leave prior to and during a period of previously scheduled annual leave had the right at his request to take the annual leave when he recovered. Entitlement to paid annual leave must be regarded as a particularly important principle of EU social law and the right to be paid annual leave cannot be interpreted restrictively.

Key point: The Government is proposing to amend the Working Time Regulations to reflect current ECJ case law so the response to the position under English law in the light of these cases is awaited with interest.