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28th November 2011

Request to use it or lose it: Sickness absence and annual leave

Over recent years there have been various cases regarding an employee's entitlement to annual leave if they are unable to take it due to long term sickness absence. These cases have confirmed that employees should be allowed to take holiday during sickness absence or alternatively be allowed to carry their annual leave entitlement over to the next leave year. But what happens if an employee does not request to take holiday or to carry that holiday over?

The Employment Appeal Tribunal in the recent case of Fraser v Southwest St Georges Mental Health Trust has confirmed that in these circumstances an employee will lose their right to their leave entitlement in that annual leave year.

In the Fraser case, Mrs Fraser suffered an injury to her knee during an accident at work. Mrs Fraser was signed off sick from November 2005 and did not return to work before her dismissal in 2008. Upon the termination of Mrs Fraser's employment, the Trust made a payment to Mrs Fraser in lieu of her untaken holiday entitlement in 2008, but did not make any payments for the untaken leave in the previous two years.

Mrs Fraser brought a claim to the Employment Tribunal for the holiday pay that she claimed that she was entitled to for the two previous holiday years. The Trust accepted that Mrs Fraser would have accrued holiday over these two years but argued that, in order to take such holiday, she needed to give notice to the Trust. As she had not informed the Trust that she wished to take holiday, or that she wished to carry it over, she had lost her entitlement to take her holiday entitlement in the relevant years and had, therefore, lost her entitlement to payment for such holiday.

The Employment Tribunal agreed with the Trust and rejected Mrs Fraser's claim. Mrs Fraser appealed but the Employment Appeal Tribunal rejected the appeal. It held that a worker on sick leave could either take and therefore be paid for their holiday whilst they are signed off sick, or request that they be permitted to carry over their entitlement. The Employment Appeal Tribunal held, therefore, that if Mrs Fraser had wanted to carry her holiday over to the next year she should have asked the Trust to do so. As she did not she had lost her right to take this holiday, and, therefore, to be paid for it.

This is a useful for case for employers as it suggests that although employees should be allowed to either take holiday during sickness absence or carry it over, if they do not request to do so, they will lose their entitlement at the end of the leave year. If, therefore, an employee is off sick for a number of years, as in Mrs Fraser's case, they will not automatically carry over each year’s holiday entitlement, they will have to request to either take their holiday or to carry it over at the end of each year.

Another question that arose from this case is whether an employer has a duty to inform an employee on long term sick that they shall be required to request to take their holiday or carry it over if they do not want to lose it. The Employment Appeal Tribunal in the Fraser case held that there was no such duty. The Employment Appeal Tribunal held that the issue in the Fraser case related to a right that arises under general law, and there is no obligation for an employer to advise employees of their right under general law.

For more information or advice, please contact Gemma Burnham on 01604 233233 or on gemmahill@hewitsons.com

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