The Employment Appeal Tribunal (EAT) has found in favour of an NHS employee, ruling that she was entitled to payment in lieu of holidays she had been unable to take while on sick pay for a year.
The NHS Leeds worker was signed off sick for the whole of 2009-2010 and was then dismissed on the grounds of incapability due to ill health.
She was not paid in lieu of untaken annual leave on the grounds that she had not formally requested leave, a stance in line with previous case law that suggested that employees need to ask for annual leave while they are off sick, otherwise they will lose it.
An earlier tribunal had ruled that the claimant should have been paid in lieu of her annual leave. Following the EAT on 29 June, Mr Justice Bean found that the claimant had not been well enough to take her annual leave because of sickness so she had the right to carry the entitlement over to the following year, without having to formally request that.
Giving judgment in NHS Leeds v Larner, he said: “The right to be paid for that annual leave crystallised on the termination of her employment; as it happens, only a few days after the end of the pay year.”
Permission to appeal against the EAT decision has been sought from the Court of Appeal.
A government consultation on reforming employment law, which includes changes to the Working Time Regulations as a result of European cases on the interaction of annual leave and sick leave, closed on 8 August.
LINK: Working hours guidance