The Court of Appeal has held that an employee was entitled on termination of employment to payment for unused statutory holiday when they were on sick leave for the whole of the leave year.

The key facts are as follows:

  • The employee had been absent on sick leave for the whole of the leave year 2009/2010.
  • The employee had failed to request the holiday and had failed to ask for it to be carried over into the following leave year. 
  • The employee was dismissed early in leave year 2010/2011.
  • The employer refused to pay the employee for the leave not taken in 2009/2010.

The Court of Appeal held that the employee’s failure to request holiday and failure to ask for it to be carried forward during the previous leave year did not mean that she lost the right to payment.

The Court distinguished Fraser v South West London St George’s Mental Health Trust (2012) as in that case the employee had the opportunity to take the leave.

In this case the employee had no opportunity to take the leave as she was still on sick leave when dismissed.

The Court did state that the Working Time Regulations should be interpreted to comply with Article 7 of the Working Time Directive.

Key point:

It has become increasingly clear that employers should allow workers to carry leave forward when they have been unable to take the leave due to sickness. This is the case regardless of whether the worker has made a request to take the leave or indeed requested for the leave to be carried forward.

NHS Leeds v Larner (2012)