It has been established over the last few years that holiday entitlement accrues whilst an employee is on sick leave and an employee may elect to take paid holiday during a period of sickness absence. But if an employee does not elect to take that holiday during the holiday year, does it roll over into the following holiday year and is an employee entitled to a payment on the termination of his or her employment?
The Employment Appeal Tribunal (EAT) considered this recently in the case of Fraser -v- St George’s NHS Trust. Ms Fraser was a nurse. In November 2005 she injured her knee in an accident at work and was subsequently off work sick until her employment was terminated in October 2008. Amongst a number of claims issued against the Trust, Ms Fraser claimed holiday pay for the two years preceding her dismissal when she was not being paid.
It was accepted that Ms Fraser did not make a request to take paid holiday during those two years. The Trust argued that to exercise her right to paid holiday, Ms Fraser must have done so by making a holiday request to her employer during her employment. Accordingly, they submitted that her entitlement to paid holiday had expired at the end of the holiday year.
The Employment Tribunal had accepted this argument and dismissed Ms Fraser’s claim for paid holiday. Ms Fraser appealed, submitting that there was no requirement that she should have ‘taken’ her leave by requesting holiday in order to make her claim.
This argument was rejected by the EAT, which upheld the Tribunal’s decision. After careful consideration of the Working Time Regulations, the EAT concluded that there was a requirement on an employee to request holiday on the basis that an employer who is not otherwise paying the employee, or is paying him only sick pay, will not know whether, or when, he is obliged to make any payment of holiday pay.
If you have not already done so, we recommend that your Staff Handbooks are updated to include clarification of an employee’s entitlement to paid holiday during sick leave. This will assist both employers and employees in managing sickness absence.
