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Holidays and Sickness Absence

If an employee is prevented from taking annual leave due to sickness absence they must be allowed to take that annual leave at a later date even if this means that the holidays are carried forward into the next holiday year. 

But is this carry forward automatic or does the employee need to give notice that they want the holidays to be carried over?  This point was the subject of the Court of Appeal decision in NHS Leeds v Larner.  Mrs Larner was employed by NHS Leeds as a clerical officer.  She was off sick for the whole 2009/2010 holiday year and was dismissed at the beginning of the 2010/2011 holiday year.  During 2009/2010, she had not made any request to take annual leave nor expressed any wish that her entitlement should be carried forward.  On termination of her employment, she was therefore paid in lieu only in respect of the 2010/2011 accrued, untaken holidays.  She received nothing in respect of 2009/2010 annual leave as NHS Leeds believed that she should have made a request to either take the holidays or carry them forward and that in the absence of such a request, the entitlement to the 2009/2010 holidays expired.

The Court of Appeal roundly rejected that belief.  An employee does not need to request that their accrued, untaken annual leave is carried forward into the next year where they are unable or unwilling to take such leave because of their ill-health.  The position may however, be different where an employee returns to work before the end of the holiday year and has the opportunity to take their holiday entitlement.

For more information please contact Martin Sinclair or Nicola Gray or call 01224 632 464.

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