In the past couple of years there has been a lot of attention focused on the interaction between sickness absence and holiday entitlement. In Stringer v HMA the ECJ confirmed that employees on sick leave do continue to accrue holiday leave. In Pereda v Madrid Movilidad SA the ECJ confirmed that employees who arrange holidays then do not have the opportunity to excercise their right to holidays due to illness are entitled to exercise that right at a later date.
Arising as a direct result of Stringer and Pereda, the decision in NHS Leeds v Larner is an important one. Mrs Larner was absent for medical reasons for the whole of a holiday year; she had not arranged any holidays before she was signed off and did not make any requests while off sick. She was then dismissed for capability reasons but was not paid for her untaken holidays. NHS Leeds said that as she had not requested any holidays she was no longer entitled to them, arguing that the lack of request meant that the entitlement expired at the end of the leave year.
Neither the Employment Tribunal nor the EAT agreed with this reasoning. As in Pereda, Mrs Larner had not been able to exercise her right to take holidays and so was entitled to take them at a later date - as she was dismissed this meant she was entitled to be paid for the untaken holidays. There was no requirement for her to have actually requested the holidays in order to be entitled to do this. They did note that had a fit employee failed to request holidays the position may have been different and that, in such circumstances, they may not have been entitled to take them at a later date as they would have had the opportunity to take them had they wished.
This is an interesting indication of the Tribunal's treatment of Stringer and Pereda and is an important practical decision for employers dealing with employees off sick who have not requested any leave.