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Paid Holiday for Sick Workers

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[Thanks to Lionel Stride of Temple Garden Chambers for preparing this case summary]

The EAT (Bean J) has handed down its decision in NHS Leeds v Larner, which is authority for the proposition that the entitlement to paid annual leave of a worker absent for the whole of a pay year through sickness does not depend on the worker submitting a request for such leave before the end of the relevant pay year.

The appellant, Mrs Larner, was signed off sick for the whole of the pay year 2009/2010. She was subsequently dismissed on grounds of incapability due to ill-health but her employer refused to make any payment in respect of her untaken annual leave on grounds that no formal request for leave had been made. The main issue on appeal was whether the failure to make such a request under Regulation 15(1) of the Working Time Regulations 1998 (as amended) precluded the normal entitlement to payment in lieu of annual leave following dismissal.

The EAT held that the situation was analogous to the CJEU decision in Pereda v Madrid Movilidad SA, where it was held that an employee who had been injured during a period of booked annual leave, and therefore off sick, remained entitled to a replacement period of leave on his return. Similarly, as Mrs Larson had been unable to take her annual leave by reason of sickness, she retained her "right to enjoy a period of relaxation and leisure", or payment in lieu on dismissal, in the following year.

Interestingly, the EAT stated, obiter, that the position might be different in the case of a fit employee who fails to make any request for leave during the whole of a pay year. The reason being that such an employee would have had an opportunity to exercise his/her right. Expect more cases too follow!