Long Term Sickness and Accrued Holidays
A recent case at the Court of Appeal (NHS Leeds v Larner) which gives further clarification regarding workers who are absent from work due to long term sickness and their entitlement to carry over untaken holiday from one holiday year to the next.
In a previous judgment in the case of Fraser v South West London St George Mental Health Trust, the EAT ruled that in order for a worker to be entitled to payment for holiday accrued during their sickness, the worker had to either request the time off during their sick leave or request that the holiday is postponed until their return to work; the emphasis being that if the worker did not make a request to do one or the other, then the outstanding holiday would be lost at the end of the holiday year.
In the case of NHS Leeds v Larner, Mrs Larner had been absent from work due to sickness for the whole holiday year 2009/10. Mrs Larner did not take any holiday that year neither did she request to carry her holiday forward. Mrs Larner’s employment was terminated in the following holiday year 2010/11 and she asked to be paid for holiday not taken in the holiday year 2009/10 but this was refused.
The Court of Appeal decided that as Mrs Larner was prevented from taking her holiday due to her sickness, she was entitled to carry forward her untaken holiday and it was not dependent on her making a request to carry the holiday forward. As Mrs Larner’s employment was terminated in the following leave year she was entitled to receive a payment in lieu of the untaken holiday.
What this means is that in the case of employees who are on long term sick and who are unable or do not wish to take holiday during their sick leave, employers will need to carry forward the untaken holiday (even into a new holiday year if necessary), so that the employee can take their holiday when they return to work. If the employment ends before the employee is able to take the holiday then they will be entitled to a payment in lieu of the untaken holiday. The decision does not clarify exactly how long employees could continue to carry forward holiday accrual so it could prove expensive.