A ruling on workers’ right to leave when sick may have unintended consequences, says Nicola Powell

This article was taken from Construction Manager and can be read in full by clicking the link.

The question of a worker’s right to annual leave whilst on sickness absence has been a hot topic in recent years. A right to at least four weeks of paid annual leave is found in the European Working Time Directive (“the Directive”), and is implemented into UK national law under the Working Time Regulations 1998 (“the Regulations”).

Historically, case law (both domestic and European) has been inconsistent with legislation and confused the issue as to what extent workers hav

e the right to carry over holiday whilst on sick leave. However, the recent case of NHS v Larner has provided some clarification.

Mrs Larner was employed by NHS Leeds. She was on sickness absence between 2009 and 2011 during which time she did not take annual leave or ask to carry it forward. In April 2011 Mrs Larner was dismissed. NHS Leeds refused to pay her in lieu of her untaken 2009/2010 annual leave and she subsequently claimed for this entitlement under Article 7 of the Directive.

The Employment Tribunal and Employment Appeal Tribunal (EAT) agreed that Mrs Larner had the right to carry forward her accrued annual leave to 2010/11 and to be paid in lieu of that untaken leave on termination of her employment. Notably, the EAT held that where an employee was unable to take paid leave due to sickness, that leave would carry forward to the next holiday year regardless of whether a request was made.

The EAT’s decision was upheld by the Court of Appeal which also suggested that, read in line with the Directive, the Regulations could be taken to apply to workers within the private sector. The result is that employers cannot avoid paying holiday for four weeks’ annual leave in the year prior to termination (which is the entitlement under the Directive).

Nicola Powell is a member of the employment team at IBB Solicitors.