There have been a number of recent cases considering the rights of an employee to holiday entitlement in the context of sickness absence. In the case of NHS Leeds v Larner  IRLR 894 the EAT held that an employee’s failure to request leave whilst off sick did not prevent her from carrying over the leave to a subsequent leave year. It held that she was entitled to be paid in relation to that leave on termination of her employment. This decision therefore seemed to contradict the employment tribunal decision in Walsh v Lancashire Care NHS Foundation Trust.
In Mrs Larner’s case, she went absent on sick leave on 5 January 2009 and did not return to work until her employment terminated on 8 April 2010. The employment tribunal upheld her claim for holiday pay for the leave year from 1 April 2009 to 31 March 2010. Her employer appealed to the EAT arguing that she had lost her statutory holiday entitlement because she had failed to give notice that she wished to take the holiday before the end of the holiday year on 31 March 2010. The EAT upheld the tribunal decision that a worker who had been on sick leave for an entire leave year and had not taken any holiday whilst off sick was entitled to be paid in relation to that year’s unused statutory holiday entitlement on the termination of her employment. The fact that the employee had not requested holiday during the relevant leave year did not mean that she lost the right to the payment. The EAT effectively followed the Pereda case and held that the statutory holiday entitlement in that leave year could be carried over to the next year whether or not the employee formally requested the leave.
In a different EAT decision in the case of Fraser v South West London St Georges Mental Health Trust, the EAT held that if a sick employee wishes to carry over their statutory holiday to another leave year they must make a request to the employer and failure to make such a request means that the untaken statutory holiday cannot be carried over into the next leave year.
In the case Mrs Fraser went on long term sick leave in November 2005 and did not return to work before her dismissal in October 2008. On the termination of her employment the employer paid her in lieu of the statutory holiday entitlement for the final leave year but not in respect of the holiday entitlement for the previous two leave years. The employee brought a claim for the outstanding holiday pay. The tribunal held that although the employee had accrued the right to take holiday during the two holiday years, she had not given notice under regulation 15 to exercise that right and as such her right to take statutory holiday had been extinguished at the end of each leave year under regulation 13(9). The EAT held that the previous cases of Canada Life and List Design had been wrongly decided on whether or not an employee had to request holiday. It held that it could not be right for workers to receive statutory holiday pay when they have not taken holiday.
The question of whether sick workers must actually give notice to take or over their holiday entitlement will be considered by the Court of Appeal as the Larner case is being appealed