Employee on sick leave must request holiday to be paid for it

8 November 2011

Fraser v Southwest London St George’s Mental Health Trust 2011

The Employment Appeal Tribunal (EAT) has held that an employee on long-term sick leave must give notice of their intention to take statutory sick leave during the leave year in question in order to be paid for holiday pay.

F, a nurse, injured her knee at work in November 2005. She went off on long-term sick leave. Her entitlement to sick pay expired in August 2006. On the termination of her employment in October 2008, she brought a claim for unpaid statutory holiday pay in respect of the two previous leave years during which she had been away on long-term sick leave. F did not notify the Trust of her intention to take annual leave during her sickness absence.

The EAT concluded that F was not entitled to accrued holiday pay for the previous leave years because she failed to trigger her entitlement to be paid for it by giving notice under Regulation 15 of the Working Time Regulations 1998. The EAT went on to say that if F had made a request to take leave accruing in either 2006/2007 or 2007/2008, the Trust ‘might have been obliged to accede to that request’ and she might have been entitled to a payment in lieu of accrued but untaken leave.

Whilst the EAT considered a number of previous authorities on the issue of holiday pay, a recent Judgment of the EAT, NHS Leeds v Larner 2011 does not appear to have been considered.  The Judgment appears to be at odds with the Judgment in Larner which held that an employee on sick leave for the whole of a pay year was not required to submit a request, in the leave year, in order to be entitled to accrued leave on the termination of their employment.

It is understood that Larner is proceeding to the Court of Appeal. Until the issue is resolved by the Court of Appeal, employers should rely on the current authority (Fraser) where employees seek accrued holiday pay for previous holiday years following a period of sickness absence and where notice of leave has not been submitted.