Holiday entitlement not requested before the holiday year endMonday, August 8th, 2011
EAT considers whether a worker absent sick for the whole holiday year loses holiday entitlement for that year if the worker has not asked for it to be carried forward.
In a decision given on 29 June 2011 in the case NHS Leeds v Larner, the Employment Appeal Tribunal (EAT) ruled that Mrs Larner did not lose her entitlement to holiday leave that she had not been able to take due to sickness absence for an entire holiday year, even though she did not formally ask for it to be carried forward to the next holiday year.
In 2009, the Court of Justice of the European Union (CJEU) ruled in the case Stringer v HMRC that entitlement to annual leave under the provisions of the Working Time Directive continues to accrue during sickness absence and is not lost if a worker is still sick at the end of a holiday year. The issue in the case before the EAT was whether the entitlement is forfeit if the worker does not submit a request for the annual leave to be carried forward before the holiday year ends.
In a later case, Pereda v Madrid Movilidad SA, the CJEU further ruled that the purpose of paid annual leave is to allow the worker to rest and to enjoy a period of relaxation and leisure, and that
- the right to untaken holiday leave may be lost at the end of a holiday year if the worker has had the opportunity to exercise that right, but
- the right is not lost if the worker was on sick leave for all or part of the holiday year and has not actually had the opportunity to exercise that right.
In the case under consideration by the EAT, the issue, the EAT decided, was not whether Mrs Larner had to make a formal request for the leave to be carried over but whether she had had the opportunity to exercise her right to annual leave. As she was sick for the whole of the holiday year, she is therefore presumed not to have been well enough to exercise what the CJEU described as her “right to enjoy a period of relaxation and leisure”, with the result that, as a matter of law, she did not have that opportunity. She had the right, therefore, for her leave entitlement to be carried forward without having to make a formal request to that effect.
However, the EAT stressed that the position could be different in the case of a fit worker who fails to make any request for leave during the whole of a holiday year, having had “the opportunity” to exercise the right to annual leave.
This ruling should be considered in the light of the recent recommendation by the Advocate General of the CJEU in the case KHS AG v Winfried Schulte that a limit should be imposed on the time period in which outstanding holiday leave entitlement should be taken in cases of long-term illness.