NHS Leeds v Larner [2012] IRLR 825 (CA)

Mrs Larner was a public sector worker, working for NHS Leeds and she was on sick leave for an entire year. She had not taken any holiday and had not requested any holiday during the leave year. When her employment ended, Mrs Larner made a claim for her accrued untaken holiday pay.

The court concluded that Mrs Larner had carried her unused holiday entitlement over to the next leave year. It is contrary to the EAT’s decision in Fraser v South West London St George’s Mental Health Trust [2012] IRLR 100  which said workers were only entitled to statutory holiday pay if they take or seek to take holiday. In this case, however, the facts were different because Mr Fraser had returned to work, having the opportunity to request and take leave.

To comply with the Working Time Regulations (WTR) 1998 employers should allow carry-over of 4 weeks* of statutory annual holiday where a worker on long-term sick leave does not take that holiday. Further, if a worker does not request holiday while on long term sick, it is unlikely to be fatal to their claim for accrued and untaken holiday.

*the EC Directive gives 4 weeks annual leave while the WTR give 5.6 weeks. The additional 1.6 weeks do not have to be carried over.