Landmark case victory over holiday pay for the long-term sick25 July 2012
This case was being watched by a number of NHS trusts for its outcome
A landmark case involving NHS Leeds has ruled that an employee is still entitled to paid annual holidays, even if they have been off sick for the whole of that year.
The Court of Appeal ruled that part-time, 20 hour-a-week NHS Leeds clerical worker, Janet Larner was entitled to her paid leave for the year 2009/10 when she was off sick for the whole year.
Unite national officer for health, Barrie Brown said: “This case was being watched by a number of NHS trusts for its outcome – and, in this respect, it is a landmark judgement.
“It reinforces the principle that if you are off sick for a lengthy period you are still entitled to paid annual holidays and that they can’t be withheld from you by an employer. It is part of your contract of employment.”
Mrs Larner, who lives in Leeds, worked for NHS Leeds from 2000 and went off on sick leave in January, 2009 and never returned. The trust dismissed her in April 2010. But in the compensation package, it did not include the untaken paid leave for 2009/10 on the grounds Mrs Larner had neither requested it, nor asked for it to be carried forward.
But lawyers for Mrs Larner had argued that she had been too ill during that year and was not even thinking of taking holidays. Her case had been upheld by the Employment Tribunal and the Employment Appeal Tribunal.
In its judgement, the Court of Appeal said: “She was entitled to carry her untaken paid leave forward to the next leave year in 2010/11 without making a prior request to do so.”
Barrie Brown said: “Even though the sum involved in this case is less than £1,000, it shows that employers, not just in the NHS, can’t deduct holiday pay from sick employees in this fashion. The Court of Appeal ruling upholds an important principle and draws a line in the sand for other employers thinking along these lines.”
Marion Batten, Mrs Larners’ solicitor at Unite lawyers Thompsons said: “This decision should send a clear message to employers that the attitude of ‘use it or lose it’ is unacceptable and unlawful. The ruling confirms a number of legal decisions over recent years that employees who are off sick retain their right to paid holiday leave. Isn’t that what we all expect our employers to provide?”