Labour & European Law Review Weekly Issue 285 06 September 2012
Regulation 13(9) of the Working Time Regulations (WTR) states that workers can take their annual leave in the “leave year in respect of which it is due”. In NHS Leeds v Larner, the Court of Appeal said that a worker who was off sick for an entire leave year had the right to have her leave entitlement carried over and to be paid for it, when she was dismissed.
The employees’ union, Unison, instructed Thompsons to act on their behalf.
Mrs Larner went off sick on 5 January 2009 and was subsequently dismissed on the ground of incapacity the following April.
Her contract stated that although she could accrue annual leave during any periods of sick leave, only five days of her leave entitlement could be carried over into the following leave year, if she put in a written request which was then approved. She had not requested any time off during her period of sick leave.
Following her dismissal she claimed she was entitled to be paid for her annual leave for the whole of the leave year 2009 to 2010.
Tribunal and EAT decisions
The tribunal held that Mrs Larner was entitled to be paid for all her annual leave as she had had no opportunity of taking it during the leave year 2009 to 2010. Her employer appealed, arguing that, because she had not given notice as required under Regulation 15(1), the usual entitlement to payment in lieu following dismissal did not apply.
The EAT (weekly LELR 237) held that Mrs Larner’s situation was analogous to those in the European cases of Stringer v HMRC and Pereda v Madrid Movilidad SA.
As Mrs Larner was signed off sick for the whole of the leave year 2009 to 2010, she must be presumed not to have been well enough to exercise what the Court of Justice of the European Union (CJEU) described as her “right to enjoy a period of relaxation and leisure”.
Instead, she had the right to have her leave entitlement carried over to the following leave year; without having to make a formal request. The right to be paid crystallised on the termination of her employment.
Court of Appeal
Following the decision of the CJEU in Dominguez v Centre Informatique du Centre Ouest Atlantique, the Court of Appeal said that Ms Larner could enforce article 7 of the directive (which gives workers four weeks’ paid annual leave) against the Trust directly as it was an emanation of the state.
Article 7 states “without qualification, that every worker is entitled to paid annual leave of at least four weeks. It says nothing of the need for a leave request, if the worker wishes to carry it forward to another leave reference period because of absence on sick leave”.
The Court also noted, having reviewed the authorities, that none of them stipulated a requirement for workers to request to take paid annual leave or to carry it forward to another leave period. And it was clear from some of the cases, including Dominguez, that the workers had not done so. The request to take paid annual leave in Pereda was at a time when the worker was not sick.
It concluded, therefore, that Ms Larner had been prevented from taking her paid leave for 2009/10 because she was sick. She was entitled under article 7 to carry it forward to the next leave year without making a prior request to do so. She was also entitled to payment on termination for the paid annual leave she had been prevented from taking.
This is an important decision on annual leave under the WTR for workers who are absent from work because of long-term sickness and who are unable or unwilling to take the four weeks’ annual leave conferred by regulation 13. Employers cannot deny the worker’s statutory entitlement to annual leave on the basis that they had not requested to take leave in a leave year. The worker must be allowed to take leave at another time, if necessary by being allowed to carry it over to a future leave year, and where the worker’s employment is terminated, they must be compensated for their accrued untaken leave including any from previous leave years.