Getting sick of it The case of Fraser v Southwest London St George’s Mental Health Trust is the latest in a long line of recent UK and European decisions which relate to the tricky question of taking holiday while off sick. Previous cases have made it clear that holiday entitlement continues to accrue even where the employee is on long term sick leave. Therefore an employee who is off sick and who has exhausted their contractual and statutory sick pay would still be entitled to take and be paid their 5.6 week statutory holiday entitlement. The Working Time Regulations operate a “use it or lose it” approach to holiday and any untaken statutory entitlement cannot be carried over in to the next holiday year. In addition, the Regulations only allow for a payment in lieu of untaken holiday entitlement when employment terminates and so a payment in lieu of untaken holiday cannot strictly be made at the end of a holiday year. One point that has continued to cause problems is the question of whether a request for such holiday must be made or whether an employee can simply bring an ET claim if, while on long term sick leave, they are not paid their holiday entitlement. In the latest case the Employment Appeal Tribunal has decided that an employee on long-term sick leave must request annual leave in accordance with Regulation 15 of the Working Time Regulations 1998 to be entitled to payment for it. This case provides some welcome relief for employers with employees on long term sick leave. Such employees must request a period of holiday in order to be entitled to payment for it and cannot simply demand an annual payment. It should also be noted that an employer has the right to refuse an employee’s request for holiday although an employer who did this right at the end of the holiday year in order to rely on the “use it or lose it” principle would not be able to side step liability as the courts have made it clear that an employee who does not have an opportunity to take their leave entitlement would not simply lose it but would be allowed to carry it over or possibly receive a payment in lieu of the entitlement. Written by Guy Hollebon, Head of Employment Law at Bevans Solicitors
