No requirement to request annual leave when on long-term sick leave

29 July 2011

Under Regulation 15 of the Working Time Regulations 1998 (WTR) a worker may take paid annual leave by giving notice specifying the dates on which they wish to take that leave. The notice must be double the period they wish to take as leave.

In January 2010 we issued an 'insight' following the case of Lyons -v- MITIE Security (Lyons) in which the Employment Appeal Tribunal (EAT) held that where an employee fails to request annual leave in accordance with the procedure set out in the contract of employment (and as required by WTR) they may lose the right to take that annual leave at all.

In the recent case of NHS Leeds -v- Larner (Larner) the EAT clarified how Regulation 15 applies to a worker who is absent on long-term sick leave. 

Facts

Ms Larner was absent because of ill-health from 5 January 2009 to 6 April 2010, when her contract of employment was terminated on ill-health grounds. The trust made a payment in lieu of notice to Ms Larner but did not pay her accrued but untaken annual leave. Relying on the notification requirements of Regulation 15, the trust argued that as Ms Larner had not requested to take annual leave during the leave year, she had sacrificed her entitlement to annual leave. Indeed the trust argued that had Ms Larner asked to take annual leave when she was off sick, her request would have been granted.

Decision

The EAT held that where an employee is off sick, it is presumed that they are not well enough to exercise their “right to enjoy a period of relaxation and leisure” (in normal language ... a paid holiday). In such circumstances the employee does not have the opportunity to request annual leave and cannot therefore comply with Regulation 15. The EAT confirmed, in accordance with the recent decision of Stringer, that Ms Larner had the right to carry-over accrued but untaken annual leave without being required to make a formal request to do so, and that she was entitled to a payment in lieu of accrued but untaken holidays on the termination of her employment.

Comment

This case is clearly distinguishable from Lyons, which will still apply to employees who are fit and in work. Rather, the case confirms the principles set out in Stringer regarding annual leave for employees on long-term sick leave.

The judgment does not say that sick employees cannot take holidays during periods of sickness absence. Employers should not therefore be dissuaded from offering employees on long-term sick the opportunity to take paid annual leave (as opposed to receiving only half pay for example) or using accrued but untaken annual leave during a phased return.