Employees on sick leave must request holiday to be paid for it.

22 October 2012

The Decision in Fraser v Southwest London St George's Mental Health Trust confirms that an employee on long term sick leave must request annual leave in accordance with Regulation 15 of the Working Time Regulations 1998 otherwise they lose their entitlement to it and are only entitled to a payment in lieu of holiday that accrued in the year their employment ended. In the above case, the Claimant's employment was terminated in 2008. She was paid for annual leave that had accrued in 2008 but nothing for the previous 2 years in which she had been on long term sick leave but had not taken any annual leave. She had accrued 8 weeks leave in total for those 2 years. There was no dispute that the Claimant had accrued leave in those years but the Tribunal found that for the Claimant to be paid for that leave she had to give notice under Regulation 15 to trigger her entitlement, to take leave during the same leave year, which she had not done. The Tribunal found that it was plainly right that payment for annual leave under Regulation 16 only arises in respect of leave actually taken. Therefore, where an employee who is on long term sick leave did not take their annual leave then the ordinary rule of 'use it or lose it' in the absence of any express contractual right would apply. The Tribunal also found that there was no obligation on the employer to notify an employee who was on long term sick leave that they had a right to request leave because that right arose as a result of a general matter of law. An employee on sick leave may choose to take annual leave during their absence and that request should be considered in line with the employer's usual policy for annual leave. Sick leave would cease during the annual leave period and the employee would receive payment that they would be entitled to in accordance with their annual leave and sick pay would (if applicable) be reinstated at the end of that annual leave period. If an employee on long term sick leave did not request the right to take annual leave during the relevant year, and in the absence of any agreement that the leave could be carried over, that leave would be lost. The right to a payment in lieu for accrued but untaken leave would only apply where employment was terminated and then only during the year of termination up to the termination date. This decision will give much wanted clarity regarding the accrual of annual leave whilst an employee is on long term sick leave and employers should ensure that where an employee on long term sick leave makes a request for leave that they grant that request in line with their usual policies. For additional information please contact Alexandra Dean of Gepp & Sons on 01245 228141. The above is not legal advice; it is intended to provide information of general interest about current legal issues.