Entitlement to paid annual leave when off sick

The Court of Appeal has ruled that an employee was entitled to be paid annual leave under the Working Time Directive, even though she had been absent from work through sickness.

In a landmark ruling, the court also ruled that the employee, Janet Larner, who was employed by NHS Leeds as a part-time clerical worker, was entitled to carry over annual leave she accrued while off sick to the following year, although she had not asked to do so.

Larner was on sick leave from her role as a clerical worker from January 2009 and was dismissed from her role in April 2010. Her compensation package did not contain any remuneration for the annual leave she had not taken during 2009 while she was on sick leave. NHS Leeds said that this was because Larner had neither requested the leave, nor had she asked for it to be carried over to 2010.

It was accepted by NHS Leeds before the Tribunal that if Mrs Larner had made a request for 28 days’ paid annual leave, for example, for the last 28 working days of the leave year, it would have been granted. NHS Leeds argued that the failure to make a request for paid annual leave before the end of the leave year meant the entitlement was lost thus barring any entitlement to payment in lieu of annual leave following dismissal which occurred in the following leave year.

Lawyers for the Unite union, of which Larner was a member, argued that Larner had been too ill while on sick leave to make arrangements regarding her annual leave entitlement, and argued that it should have been included in her compensation package.

The Court of Appeal upheld an earlier Employment Appeal Tribunal ruling that Larner was entitled to payment in lieu of outstanding holiday entitlement, regardless of whether she had requested to take the annual leave.

Implications

This ruling allows employees on long-term sickness absence to automatically accrue holiday for the whole period of their absence and claim payment in lieu when their employment terminates.

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