Fraser v Southwest London St George's Mental Health Trust UKEAT/0456/10/DA
The EAT in this case upheld an Employment Tribunal's
decision that an employee (who had been on long term sick leave for
a period spanning a number of leave years) had forfeited her
entitlement to payment in lieu of statutory annual leave on
termination of employment. The EAT agreed with the Tribunal's
finding that, in order to be entitled to such leave, the employee
must have given notice of the intention to take leave in accordance
with Regulation 15 of the Working Time Regulations 1998
("WTR") or have requested to defer it.
Having reviewed some conflicting case law on the issues, the EAT
confirmed that it preferred the approach taken by the EAT in the
case of Kigass, where it was held that if the WTR are to be relied
upon by an employee in support of a claim for unpaid holiday, those
regulations must have been complied with by the employee.
Accordingly, as entitlement to leave under the WTR cannot be
carried over from one leave year to the next, an employee who fails
to give notice of the intention to take leave in accordance with
Regulation 15 before the expiry of that leave year will forfeit
their entitlement.
Implications
This case has potentially far-reaching implications for employees who are in the unusual situation of having been on long term sick leave for a period spanning the entirety of their employer's leave year. The case suggests that those employees will forfeit their entitlement to take (or be paid in lieu of) their statutory annual leave entitlement for that leave year if they fail to notify their employer of their intention to take such leave in accordance with the WTR at the relevant time.
The EAT acknowledged the artificiality of making employees on
sick leave request holiday, but found it consistent with the
artificiality of allowing them to accrue leave.
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