Annual Leave Request whilst absent-Illness

25th September 2012
Annual Leave Request whilst absent-Illness image

No Need to Request Annual Leave whilst absent thro

In recent editions of this Newsletter we have reported to you the outcomes of several cases involving employees looking to claim holiday or holiday pay when they were unable to take holiday in a particular holiday year due to long term illness.  A recent Court of Appeal decision from the summer of NHS Leeds –v- Larner has helped to clarify matters.

In this case the worker, a clerical officer for NHS Leeds, went on paid sick leave in January 2009 and did not return to work before she was dismissed in April 2010.  During 2009/2010 she did not request or ask to carry forward her accrued annual leave (four weeks in this case).

The worker claimed that she was entitled to a payment in lieu of the untaken leave.

Despite not requesting the leave before the end of the leave year, it was held that the worker had the right to take the leave at another time without having to make a formal request.  Her right to be paid for that leave crystallised upon the termination of her employment.

You may recall that previously we reported that in the case of Fraser –v- Southwest London St George’s Mental Health Trust that the Employment Appeal Tribunal had held that an employee on long term sick leave must request annual leave to be entitled to be paid for it.  The Larner case clarifies that in fact there is no need to request the annual leave so far as it relates to the four weeks of leave that a worker is entitled to pursuant to Article 7 of the Working Time Directive.

This case has pre-empted the changes that the Government are about to make to the Working Time Regulations in this country.  The Government proposes that only the core four week entitlement can be carried forward in this way, and not necessarily the additional eight days that workers have been entitled to since 2007.  These additional eight days can only be carried forward if the employment contract permits.

One significant issue does remain unresolved, and that is the time period to which the period of carry forward in the event of sickness applies.   European case law, KHS AG –v- Schulte suggests it is possible to limit the carry forward (possibly to eighteen months), but has left it to the discretion of each member state to make its own specific provision in this regard.

Daven Naghen head of the Employment Team says:-

“This case goes a long way to clarifying the problems which arise when workers claim holiday or holiday pay for a period of leave when they are absent through long term illness and are unable to take holiday.  Obviously this decision favours the workers, who do not have to make a request in order to make a claim subsequently.  However once significant issue still remains to be resolved, namely for how long can the worker’s entitlement be carried forward?  The English Courts really need to give us some guidance on this as soon as possible.  For now I would advise that employers err on the side of caution and allow this principle of carry forward for at least eighteen months as per the Schulte case.”

 

If you require any advice in respect to claims to holiday or holiday pay, then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or write to Grant at 23 New Road Spalding Lincolnshire PE11 1DH.


How Banks are Cashing in on Wills image

How Banks are Cashing in on Wills

Recent headlines have reported how banks are now cashing in on Wills.

During the 1990s and early 2000s, banks offered customers low cost Wills (or sometimes even free Wills) but the small print allowed the bank to charge extortionate rates to act as Executors. It is reported that banks are expecting billions of pounds of revenue from their Will writing services and administering estates and in some cases their fees have been over £12,000 to administer an estate as they look to charge a fixed fee PLUS a percentage of the deceased’s wealth.

If you or a loved one has made a Will through a bank we would urge you to check who you have appointed as Executors and check any small print which you may have signed. If you are unsure then please speak with one of our lawyers in the Wills and Probate team who can look at your existing Will with you. It may be appropriate to make a new Will which revokes any previous Will you have made which could save your family thousands of pounds when your estate needs to be administered.

In the majority of cases, when someone has passed away we can provide the family with a quote of how much the legal fees will be so that there are no nasty surprises once the administration is complete.

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Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

Mike Pepper gave us excellent advice. He was always most helpful and accommodating giving lucid explanations every step of the way. Thank you Mike.

Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!