The question of whether or not an employee who is off sick needs to request their holiday during the holiday year in question has been answered by the Court of Appeal – at least for the moment!
In 2010 we reported that an employment tribunal in the case of Khan v Martin McColl held that an employee lost their right to accrue holiday if they did not request it during the leave year in question. This was a controversial decision at the time as it appeared to undermine previous decisions of the European Court and the House of Lords – not something which employment tribunals should be doing!
Perhaps not surprisingly, the Employment Appeal Tribunal (EAT) subsequently held in the 2011 case of NHS Leeds v Larner that there is no requirement for an employee who is off work due to sickness to request to take their holiday during the holiday year in question. They were entitled to a “right to enjoy a period of relaxation and leisure” which their ill health was preventing them from exercising.
That decision of the EAT has now been upheld by the Court of Appeal (a copy of the judgment can be found here). They found that a requirement for an employee who was off sick to request holiday during the leave year in question was incompatible with the EU Working Time Directive, which is of course where the statutory right to paid holiday comes from.
So that’s it – apart from the fact that the Government has proposed amending the Working Time Regulations to address the issue of holidays during periods of sick leave, as well as other aspects of the Regulations, in its Modern Workplaces consultation. A response to that is still awaited, but we will update you on developments when they are published.
For advice on this or any other area of employment law, please contact our friendly team on 01243 836840 or email [email protected].