NHS worker wins fight for holiday pay at Court of Appeal

NhsAn NHS worker has won compensation for her unpaid holiday entitlement at the Court of Appeal; the claimant had been off sick from work for an extended period and during this time she had not taken any holidays. The following year, she was dismissed from her employment and discovered that her employer, the NHS, had not carried her unused holiday entitlements forward into the New Year.

Ms Larner had worked with NHS Leeds as a part-time clerical worker since 2000. However in 2009 she took sick leave due to chronic fatigue syndrome and depression. During this period she did not take any holiday leave, saying that she was ‘too ill to do so’. In April 2010, she was dismissed from her employment, but discovered that she would not be compensated for the holidays she had not taken in 2009.

Under UK employment law, it is up to the discretion of the employer whether or not employees are allowed to carry over their unused holidays into the following year. However, under the circumstances where an employee has been absent on sick leave for an extended period of time and has not used their holiday time then the employment tribunal may rule that any unused holiday pay can be awarded to the employee.

The Court of Appeal noted that not all employment tribunals ‘have been taking the same approach to paid annual leave rights on termination of employment after an extended period of absence on sick leave’, but hoped that this test case would ‘produce more consistency’.

NHS Leeds said that since the claimant had not requested her holidays to be carried forward into 2010, then she was not entitled to payment. However, an employment tribunal disagreed with this point of view, siding with the claimant instead. The NHS appealed the decision at both the Employment Appeal Tribunal and the Court of Appeal.

The Court of Appeal upheld the original verdict, agreeing that the claimant should be awarded the amount of her unpaid holiday pay.

Speaking on the decision, Mr Brown, the officer for health of trade union, Unite, said: ‘Even though the sum involved in this case is less than £1,000, it shows that employers, not just in the NHS, can’t deduct holiday pay from sick employees in this fashion. The Court of Appeal ruling upholds an important principle and draws a line in the sand for other employers thinking along these lines.’

NHS Leeds have said that they will review their employment policies based on the Court of Appeal’s decision.

What is employment law? If you wish to speak to an employment law lawyer regarding matters of fair employment, work regulations, labor relations or require advice and assistance on any area of UK employment law, then please do not hesitate to contact Sam Riley Law on 0333-577-7037.
July 28, 2012
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