NHS Leeds v Larner

A worker absent through sickness for the whole of a leave year does not lose accrued paid annual leave merely because no request was made before the year ended. The worker is presumed not to have had the opportunity to take leave and the entitlement carries forward without a formal carry-over request. Payment in lieu becomes due when employment terminates. The notice machinery in regulation 15 governs when leave may be taken; it does not make notice a precondition to the underlying entitlement. The position may differ for a fit worker who had the opportunity to take leave but made no request, particularly where the contract provides for loss of untaken leave.

The respondent, employed part-time by the appellant, was absent on sick leave from 5 January 2009 until her dismissal on 6 April 2010. She made no requests to take annual leave during the 2009–2010 leave year. The Employment Tribunal held that she was entitled to payment for accrued leave which she had been unable to take. The appellant argued that the entitlement was lost because she had not given notice under regulation 15 of the Working Time Regulations 1998. The central issue was whether a worker absent through sickness for the whole leave year must request leave or its carry-over before the year ends.

1. Appeal dismissed. The Tribunal was right to find that the respondent was entitled to payment for annual leave which she had no opportunity to take during the 2009–2010 leave year.
2. The Working Time Regulations 1998 implement the Working Time Directive, but the Directive is not directly effective in English law. The entitlement therefore had to be determined from the Regulations, as explained in Gibson v East Riding of Yorkshire Council [2000] ICR 890 and British Airways PLC v Williams [2009] ICR 906.
3. Regulation 15 concerns the exercise of leave, including worker notice and employer counter-notice. It does not require the word “only” to be implied so that failure to give notice removes the underlying entitlement. Where compliant notice is given and no compliant counter-notice follows, the right to take leave at the specified time crystallises.
4. The effect of Stringer v HMRC [2009] IRLR 214 and Pereda v Madrid Movilidad SA [2009] IRLR 959 is that a worker signed off sick for the whole leave year is presumed not to have been well enough to exercise the right to rest and leisure. The worker therefore has a right to carry the regulation 13 entitlement into the following year without making a formal carry-over request. The right to payment crystallises on termination of employment.
5. The judgment did not adopt the approach attributed to Lyons v Mitie Security Ltd [2010] ICR 628 concerning ordinary variation or exclusion of the regulation 15 requirements. Any variation or exclusion requires a relevant agreement.
6. A fit worker who makes no request throughout a leave year may occupy a different position, because that worker may have had the opportunity to exercise the right to leave. Loss of the right may then depend on the contract.
7. The separate claim concerning untaken leave from 2008–2009 was not pursued in argument, and the appeal was dismissed in that respect also.

• Employment Appeal Tribunal: appeal from the Employment Tribunal dismissed. The Tribunal’s finding that the respondent was entitled to payment for untaken annual leave was upheld.