NHS Leeds v Larner [2012] EWCA Civ 1034
Published on: 27/07/2012
Issues Covered:
Working Time
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Background
In this case the Court of Appeal held that an NHS employee who was unable to take four weeks' paid annual leave due to sickness did not lose her entitlement to that leave. The employee had been absent from work on long-term sick leave for the whole of the2009/2010 leave year. During that year she neither took paid annual leave nor asked her employer to carry forward her leave entitlement to the following year. Yet, it was held that 86she was entitled to carry the untaken leave over into the next leave year without making a prior request to enable her to receive a payment in lieu on termination of employment.The Court noted that the employee could rely on the direct effect of Article 7 of the EU Working Time Directive (No.2003/88). That article stated, without qualification, that every worker was entitled to be paid annual leave of at least four weeks, and it contained no requirement that the worker should make a prior request if he wished to carry forward his entitlement to another year because of absence on sick leave. The following outcomes were reached:1. The employee did not lose her entitlement to paid annual leave for the year 2009/2010, but was entitled to take it at another time, beyond the year 2009/2010 if necessary; 2. The only permissible option under the Directive would have been to allow the employee to carry forward her unused paid annual leave entitlement to the following leave year. As her employment had been terminated early in that year, before she could take the carried-forward leave, she was entitled to payment in lieu; 3. There was unchallenged evidence that the employee had been unable to have an opportunity to take paid annual leave in the year 2009/2010 because of her sickness; and 4. None of the ECJ decisions laid down a requirement that a worker on sick leave had to request to take paid annual leave or to carry it forward to another leave period. http://bit.ly/NWl5Dw
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The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
This article is correct at 27/07/2012
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