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Employment Law Update – Holiday Entitlement and Sickness

Following the decisions in the Stringer and Pereda cases in 2009, we know that an employee who is long term sick accrues holiday during the period of his sickness absence. However, the Working Time Regulations require an employee to request the time off in the relevant holiday year.

So the question may arise what happens if he does not make the request that he intends to take the leave in the current year; does he lose the right? In one case an employee who went off sick with anxiety and depression in October 2003 was eventually dismissed on grounds of ill health in June 2007.

During this time the employee, Mr Walsh, did not request any statutory holiday. When he was dismissed, the employer Lancashire Care NHS Foundation Trust, paid him the holiday accrued but not taken in the current holiday year. Mr Walsh complained that he should have received the holiday accrued but not taken in previous holiday years.

In this case the tribunal found that because he had not requested annual leave in each of the current leave years he had forfeited his right to it. In the later case of Millard v Roland J Bell Ltd, the tribunal disagreed with the reasoning in Walsh.

It found that a strict interpretation of the request requirements ran contrary to the Stringer and Pereda decisions. If an employee who cannot take holiday because of ill health nevertheless accrues it, it doesn’t make sense to deny him that right because it has not been requested at an earlier time when he is sick.This is probably the safest line of reasoning to adopt.

Give us a call if you have queries about holiday or other HR problems.

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