The Court of Appeal is reviewing whether employees who are absent on prolonged sickness leave must inform their employers of an intention to take holiday and whether they can carry holiday forward to a subsequent holiday year.
Yesterday (29 March), the case of NHS Leeds vs Larner, considered two unresolved issues: firstly, 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.
Tim Wragg, a senior associate at law firm Eversheds, said: “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.
“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 un-taken 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 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 leave. 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”, said Wragg.
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