Worker off sick for a year 'entitled to holiday pay'

An NHS clerical worker has won her appeal that she should be paid the holiday pay she accrued while on sick leave for a year.

Janet Larner had been signed off work with ME and depression, and had six months leave on full pay followed by another six months on half pay. While she was off sick, she didn’t ask for her holiday leave to be carried forward into the next year.

When her employment was terminated, she wasn’t paid the holiday pay that she would have been entitled to if she had not been off work sick.

The case went all the way to the Court of Appeal, where Lord Justice Mummery acknowledged the importance of the issue to be decided. He said:  “Entitlement to paid annual leave and to payment in lieu on termination of employment matter a great deal to employers and workers alike.”

“Both sides need to know where they stand, preferably without having to go to the Court of Appeal, or all the way to Luxembourg, to find out how the law works.”

Ms Larner based her claim on Article 7 of the Working Time Directive, which says that workers don’t need to request to have their accrued pay carried forward. However, it doesn’t mention what should happen if the worker had been off work and receiving sick pay.

Lord Justice Mummery said: “The directive made no distinction between sick workers and other workers, so that the right to annual leave could not be made subject to a condition that the worker had actually worked in the reference period.”

The court ruled that as Ms Larner had not been able to take her holiday because she had been off sick, she was entitled to have it carried over into the following year. As her employment was terminated, she was entitled to payment in lieu.

Please contact Paul Stevens or Neil Cuffe on 020 290 0333 if you would like more information about the issues raised in this article or any aspect of employment law.

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