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 or write to Grant at 23 New Road Spalding Lincolnshire PE11 1DH.

Dementia Friends image

Dementia Friends

Maples Solicitors are proud to announce that they have now joined to become Dementia Friends which is an Alzheimer’s Society initiative.

The private client department of Maples Solicitors prepare Wills and Lasting Powers of Attorney on a regular basis and this often involves dealing with clients who are suffering from dementia. The private client team pride themselves on spending as much time as is necessary to assist all of their clients, but those suffering from dementia often require additional assistance and time to ensure that they have fully understood the legal documentation that they are creating. The private client department are regularly complimented on the way they deal with such clients, whether this be explaining things to them in a clear and uncomplicated manner, spending time with them or putting them at ease.

It is a misconception that anyone suffering from dementia cannot make a Will or Lasting Power of Attorney. Only if someone lacks sufficient mental capacity are they unable to make such a document. It is therefore vitally important upon any diagnosis of dementia that legal advice is taken as soon as possible to make sure that your affairs are in order so that it is easier for your family to deal with your affairs if you are unable to do so yourself.

To become Dementia Friends, Maples Solicitors have pledged to develop their understanding of dementia and continue assisting clients suffering from dementia with their legal affairs in a respectful, friendly and efficient way that is not daunting making the process as easy as possible.

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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"

James Turner BA

James Turner was extremely helpful with our buying process. Everything went smoothly. We are very happy with the level of professionalism demonstrated by the office. Highly recommended solicitors. Will definitely do business with them again.

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 GCILEx

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.

Donna Sandison FCILEx

Donna has been helpful and professional every step of the way during the process. Always on hand to answer any queries and totally professional and friendly at all times.