Must a worker on long-term sick leave request holiday during the leave year in order to be entitled to be paid for it? No, according to the Court of Appeal in NHS Leeds v Larner.
The employee was off sick for the whole of the 2009/10 holiday year. When she was dismissed at the start of the following holiday year she was not paid for holiday that she had accrued but not taken (because of her sickness absence) in the previous leave year. The employer argued that because she had neither asked to take leave nor asked to carry it forward, she had lost the previous year's entitlement. The Court of Appeal upheld the EAT's decision rejecting this argument; the employee was unable to take her paid leave because of sickness absence and could carry that leave forward to the next holiday year. She did not have to make a specific request and was entitled to be paid for the accrued untaken leave on the termination of her employment.
Larner does resolve the discrepancy between EAT cases on the specific issue of the need for a request to carry over but two other points are still unresolved: the Court of Appeal refused to comment on whether the additional 1.6 weeks' holiday can be treated differently from the basic four week entitlement and we are still waiting to hear whether the Government will amend the Working Time Regulations to limit the period over which holiday carry forward is allowed (a 15 month carry over period is permissible according to European case law). In the meantime, however, the case does mean that employers may find themselves having to make significant payments on termination to employees who have built up accrued but untaken leave during extended sickness absence.