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http://www.workplacelaw.net/human-re.../content/40643
29 Mar 2012
This week an appeal court has been reviewing whether employees who are absent on prolonged sickness leave must inform their employers of an intention to take holiday and also whether they can carry holiday forward to a subsequent holiday year.
In the case of NHS Leeds v. Larner, Ms Larner had been off sick for a period of 14 months, and had not had the opportunity to take any leave during the holiday year before being dismissed on grounds of incapability due to ill health. Her employer had refused to make any payment in lieu of her untaken annual leave on the basis that she had not made a formal request to take any leave. The EAT ruled that Ms Larner had accrued holiday pay during her sickness absence.
Explains Tim Wragg, Senior Associate at law firm, Eversheds:
“The right of those on sick leave to take or be paid for minimum holiday entitlement has been a frequent issue before the courts in recent years, often causing uncertainty for employers and employees alike.
“The right to statutory minimum holiday entitlement has existed in the UK since 1998 and the principle that holiday entitlement continues to accrue during sickness absence is now well understood. However, some questions still remain unanswered in this area.
“In the case of NHS Leeds v. Larner, the Court of Appeal is considering two of these unresolved but vital practical issues: first, whether employees on sick leave must take any steps to exercise their rights to holiday and, secondly, the extent to which UK law allows the carry over of such leave.
“The question of how and when holiday rights can be taken by those on long-term sick leave has been considered by the UK and European courts on a number of occasions recently but the decisions reached have not always been consistent. A Tribunal case reported just a few weeks ago concluded that a sick employee had no right to carry over untaken minimum holiday leave when they had not requested to take it in the year in which it accrued.
This decision is at odds with the findings of the lower court in Larner and, disappointingly, the Tribunal failed to elaborate on the principle of carry over under the Regulations. It is not surprising that employers are left perplexed and employees do not understand their entitlements when they are on long-term sick. It is hoped that the Appeal Court’s conclusions in Larner, which will be handed down in the coming weeks, will offer much needed clarification."
29 Mar 2012
This week an appeal court has been reviewing whether employees who are absent on prolonged sickness leave must inform their employers of an intention to take holiday and also whether they can carry holiday forward to a subsequent holiday year.
In the case of NHS Leeds v. Larner, Ms Larner had been off sick for a period of 14 months, and had not had the opportunity to take any leave during the holiday year before being dismissed on grounds of incapability due to ill health. Her employer had refused to make any payment in lieu of her untaken annual leave on the basis that she had not made a formal request to take any leave. The EAT ruled that Ms Larner had accrued holiday pay during her sickness absence.
Explains Tim Wragg, Senior Associate at law firm, Eversheds:
“The right of those on sick leave to take or be paid for minimum holiday entitlement has been a frequent issue before the courts in recent years, often causing uncertainty for employers and employees alike.
“The right to statutory minimum holiday entitlement has existed in the UK since 1998 and the principle that holiday entitlement continues to accrue during sickness absence is now well understood. However, some questions still remain unanswered in this area.
“In the case of NHS Leeds v. Larner, the Court of Appeal is considering two of these unresolved but vital practical issues: first, whether employees on sick leave must take any steps to exercise their rights to holiday and, secondly, the extent to which UK law allows the carry over of such leave.
“The question of how and when holiday rights can be taken by those on long-term sick leave has been considered by the UK and European courts on a number of occasions recently but the decisions reached have not always been consistent. A Tribunal case reported just a few weeks ago concluded that a sick employee had no right to carry over untaken minimum holiday leave when they had not requested to take it in the year in which it accrued.
This decision is at odds with the findings of the lower court in Larner and, disappointingly, the Tribunal failed to elaborate on the principle of carry over under the Regulations. It is not surprising that employers are left perplexed and employees do not understand their entitlements when they are on long-term sick. It is hoped that the Appeal Court’s conclusions in Larner, which will be handed down in the coming weeks, will offer much needed clarification."
