Use it or lose it – EAT gives clear guidance on holiday pay during sick leave

After a stream of inconsistent case law the EAT has given a robust judgment confirming that an employee on long-term sick leave must request holiday pay in accordance with regulation 15 of the Working Time Regulations 1998 (the 'WTR') in order to be entitled to payment for the leave. 

The employee in this case had been involved in an accident at work and had taken a number of year's sick leave.  Upon termination her employer paid her holiday pay in respect of the final year, but nothing in respect of the previous two years when the employee had been substantially away from work on sick leave. 

The tribunal found that as the employee had not requested the leave in the two years in question she had not triggered the entitlement to be paid for it by giving notice under regulation 15 of the WTR.  The EAT confirmed the ordinary rule of 'use it or lose it'. 

Much needed guidance has at last been provided for employers. 

Fraser v Southwest London St George's Mental Health Trust (EAT) 2011

If you require any further information with regard to holiday pay during sickness absence please do not hesitate to contact a member of the employment team:

 
Philip Harman

Tel: 0845 165 5357

E-mail: philip.harman@cobbetts.com

Charlotte Lloyd-Jones

Tel: 0845 165 5439

E-mail: charlotte.lloyd-jones@cobbetts.com