Long Term Sick Employees Still Entitled to Holiday Pay

5th August 2011

In the recent case of NHS Leeds v Larner, Mrs Larner had been employed by NHS Leeds for 20 hours a week since 2000. In 2005 Mrs Larner was provided with written particulars of her employment which stated that she would not accrue leave above 20 days if she was absent from work due to sickness. Later in her employment she was issued with a holiday policy which stated that annual leave could only be carried over to the next holiday year in exceptional circumstances and prior written consent was required to do so.

NHS Leeds ran its holiday year from 1st April to 31st March. Mrs Larner's absence began on 5th January 2009. NHS Leeds decided to terminate Mrs Larner's employment on 6th April 2010, prior to which they had not received any written requests for holiday leave. Upon her termination they wrote to her and informed her that "a payment in lieu of notice and any outstanding leave will be made to you".

Mrs Larner brought a claim for unpaid holiday pay under the Working Time Regulations 1998. NHS Leeds stated that as she had not requested her leave during the holiday year, the leave had been lost as it could not be carried over into the next holiday year.

The tribunal found in favour of Mrs Larner and stated that as Mrs Larner was unwell she had no opportunity to request the time off.

The tribunal stated that she should be allowed to carry her leave over upon termination. However the tribunal added that this position may differ to that of a fit worker as they would have the opportunity to "exercise the right to leave".

This case has therefore changed the legal position and it appears that an employee no longer needs to make a request for holiday leave during long term sickness to be eligible for it, particularly upon termination.

For further information, please contact employment@thomas-carroll.co.uk

Disclaimer: This article is designed to keep readers abreast of current developments. It is not intended to be a comprehensive statement of law and specialist legal advice should always be sought in relation to any particular circumstance. Therefore, Thomas, Carroll Management Services is unable to accept liability for any errors or facts or opinion contained within.