Court of Appeal rules on holiday entitlement during long-term sick leave

The Court of Appeal has ruled that an NHS Leeds’ employee is still entitled to paid annual holidays, despite being off sick for the whole of that year.

The court ruled that NHS Leeds’ clerical worker Janet Larner is entitled to her paid leave for the year 2009/10, even though she was off sick for the whole year.

Larner went off on sick leave in January 2009 and never returned. She was dismissed in April 2010. However, the redundancy compensation package did not include the paid leave that was untaken for 2009/10, on the grounds Larner had neither requested it nor asked for it to be carried forward.

The case had been upheld by the Employment Tribunal and the Employment Appeal Tribunal.

In its judgement, the Court of Appeal said: “She was entitled to carry her untaken paid leave forward to the next leave year in 2010/11 without making a prior request to do so.”

Tim Wragg, principal associate at law firm Eversheds, said: “In upholding the Employment Appeal Tribunal’s decision in Larner, the Court of Appeal has confirmed that a use-it-or-lose-it rule does not apply in the case of workers on sick leave.

“A worker who has been absent on sick leave and has, as a result, been unable to take the four weeks’ annual leave entitlement must be allowed to take it at another time, which may mean allowing that leave to be carried over into a subsequent leave year. This rule applies whether or not the worker has requested to take the holiday or to carry it forward during the relevant leave year.

“The Court makes clear that this right to carry forward annual leave does not only apply to a worker who is unable to take leave in the year it accrues. It also applies to a worker who is unwilling to take annual leave during a period of sickness absence. This seems to put paid to any argument that a worker loses the right to carry forward on the basis that he had the opportunity to take holiday regardless of being sick.”

Barrie Brown, national officer for health at union Unite, added: “This case was being watched by a number of NHS trusts for its outcome and, in this respect, it is a landmark judgement.

“It reinforces the principle that, if you are off sick for a lengthy period, you are still entitled to paid annual holidays and that it can’t be withheld from you by an employer. It is part of your contract of employment.

“Even though the sum involved in this case is less than £1,000, it shows that employers, not just in the NHS, can’t deduct holiday pay from sick employees in this fashion.

“The Court of Appeal ruling upholds an important principle and draws a line in the sand for other employers thinking along these lines.”

A spokesperson for NHS Airedale, Bradford and Leeds said: “We are unable to comment on the individual circumstances of this case.

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“However, we do acknowledge the decision of the Court of Appeal and, as a result, we will undertake a review of our employment policies and procedures.”

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