Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawOpinionWorking Time Regulations

Legal opinion: Holidays and long-term sickness absence ruling still leaves questions unanswered

by Hayley Johnson 15 Aug 2012
by Hayley Johnson 15 Aug 2012

In NHS Leeds v Larner [2012], the Court of Appeal has held that a worker who was unable to take four weeks’ annual leave due to sickness did not have to make a request to carry it over into the next holiday year for her to receive a payment in lieu on termination of employment. Hayley Johnson, solicitor, looks at the decision and the unanswered questions that remain.

It has previously been open to employers to argue that leave has to be requested before the employee can argue that it has been deemed to be carried over; the Employment Appeal Tribunal decision of Fraser v South West London St George’s Mental Health Trust [2012] confirmed this.

For public-sector employers, the Larner decision confirms that in relation (at least) to the four weeks’ leave offered by the Working Time Directive, if employees are off sick and do not take all of this leave, any untaken days will have to be carried over into the next holiday year and paid for when they leave (whether or not they requested to take it at the time).

While the picture remains less clear for private-sector employers, the door appears to be closing on legal arguments that can be used to try to save employers the cost of implementing the European Court of Justice’s decisions in Stringer and Pereda, which indicated that employees on sick leave continue to accrue holiday and can take it while off (but are not required to do so) or carry it over to the next leave year. In Larner, the Court of Appeal confirmed that the UK’s Working Time Regulations 1998 could be read in the light of these decisions. With comments like this made by the Court of Appeal, it will be difficult to try to distinguish the private sector from the public sector on this issue.

Carrying over leave

The only point that remains clearly in employers’ favour in this area is that the case law has confirmed that leave may not be carried over an indefinite number of leave years (the ECJ’s decision in KHS AG v Schulte [2012]). This should mean that employees who are off sick for two years or more, for example those who are members of insurance-backed sick pay schemes, cannot carry leave over all the years of their absence. As yet, the area of insured sick pay schemes remains untested here.

Grey areas that remain include:



  1. How the Government will amend the Working Time Regulations to comply with the Directive. It made its initial proposals in the Modern Workplaces consultation in May 2011, however, a response following the close of this consultation is still awaited.
  2. To what extent the UK’s additional 1.6 weeks’ leave can be treated differently to the four weeks’ leave offered by the Directive. The Government’s consultation suggested that carry-over will be allowed only up to a maximum of four weeks rather than the full 5.6 weeks provided by UK law.
  3. While we know that carry-over is not indefinite (Schulte), it remains unclear how much time has to pass before an employee loses their right to take (and be paid for) leave. It would be helpful if the Government could suggest a period when it confirms how it is going to amend the Regulations.

The cases in this area have been plentiful. They have exemplified the extent to which the judiciary is prepared to stretch the interpretation of current legislation when it appears to contradict an applicable EU Directive. Much of the drama could have been avoided if the Government had clarified how the Regulations would be amended earlier. Let’s hope, for the sake of employers waiting to amend their sickness absence policies, that the Government’s clarification of how the Regulations will be amended will now be forthcoming.

Hayley Johnson is a senior solicitor in the employment team of Brodies LLP.

The XpertHR Tribunal Watch blog rounds up the key decisions on holiday and sickness absence.

Avatar
Hayley Johnson

previous post
Gillingham FC ‘wrong to brush off’ payout to racially victimised footballer
next post
Employment rate at highest level in three years

You may also like

P&O Ferries boss denies reputational damage after mass...

27 May 2022

Employers lack data to make IR35 worker status...

25 May 2022

Maternity leave: Cost of living crisis highlights need...

25 May 2022

One in five employers planning ‘no jab no...

19 May 2022

Bald move: Tribunal was right in sex-related harassment...

17 May 2022

MP demands timeline on carer’s leave legislation

13 May 2022

Maya Forstater: What is a woman?

10 May 2022

Robin Moira White: What is a woman?

10 May 2022

Queen’s Speech: absence of employment bill leaves organisations...

10 May 2022

Queen’s Speech: Exclusivity contracts for low-paid workers to...

9 May 2022
  • Strathclyde Business School expands its Degree Apprenticeship offer in England PROMOTED | The University of Strathclyde is expanding its programmes...Read more
  • The Search for Talent: Six Major Employer Pitfalls PROMOTED | The Great Resignation continues unabated...Read more
  • Navigating the widening “Skills Confidence Gap” in 2022, and beyond PROMOTED | Cornerstone OnDemand conducted a global study...Read more
  • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more
  • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
  • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+