Labour & European Law Review Weekly Issue 252 19 January 2012
Recent European decisions have established that workers who are off sick can accrue their annual leave entitlement. In Fraser v Southwest London St George’s Mental Health Trust, however, the Employment Appeal Tribunal (EAT) said that workers have to give notice if they want to carry annual leave over to another leave year.
Mrs Fraser, a nurse, went on long term sick leave in November 2005 after injuring her knee in an accident at work. Her sick pay entitlement ended in August 2006 and she returned to work in November 2007. However, as the Trust could not find any work for her it stopped paying her again in March 2008 and dismissed her in October 2008.
The Trust’s leave year ran from April to March. Mrs Fraser made a number of Tribunal claims including one for four weeks’ unpaid statutory holiday for 2006/07 and 2007/08. She did not claim for 2005/06. Nor did she claim for 2008/09 as she had been paid pro rata for that leave year in accordance with Regulation 14(2).
The Trust argued that her claim could not succeed because she had not given notice of her intention to take annual leave as required by Regulation 15 of the Working Time Regulations.
Regulation 13 (9) states that leave may only be taken “in the leave year in respect of which it is due”.
Regulation 14 (2) states that when the proportion of leave taken is less than the proportion of the leave year which has expired the employer has to pay in lieu of the leave.
Given the decision in Stringer v HM Revenue and Customs Commissioners (see weekly LELR 105), it was clear that Mrs Fraser was entitled to the annual leave for 2006 and 2007 even though she had been absent on sick leave.
However, the Tribunal said there was nothing in Stringer to suggest that Regulation 15 should not apply to workers off sick. As Mrs Fraser had not submitted any evidence that she was unable to take her leave during the relevant periods, it said that Regulation 13(9) continued to apply.
As she did not take her leave during the relevant leave years, she was not entitled to carry it over or receive a payment in lieu of it on termination of her employment.
And the EAT agreed. It said that Mrs Fraser was only entitled to statutory holiday pay if she had actually taken the leave in accordance with Regulation 15 of the WTR.
It made clear that employees who are off work as a result of sickness have a choice - to either take the leave during the period when they are off sick or ask for it to be deferred to a later date. Crucially, it is for the employee to ask but that did not happen in this case.
It also dismissed her argument that the Trust had an obligation to tell her that she had to notify them if she wanted to exercise her right to annual leave, as a result of the decision in Scally and others v Southern Health and Social Services Board.
However, the EAT distinguished this case on the basis that it involved a contract that had been negotiated collectively, under which employees had acquired rights which were contingent on them taking a particular step. It concluded there was no general duty on employers to inform their employees of their rights.
This case is significant in that it narrows the earlier approach taken by the Tribunals. It now appears that, in order to carry annual leave forward to use in another leave year or to claim it as pay in lieu on termination, workers on sickness related absence must request that the leave be carried forward to subsequent leave years.