The EAT said that:
It might appear somewhat artificial for an employee who is not at work anyway to have to give notice of an intention that part of her absence should count as holiday; but that merely reflects the artificiality of a period of long-term sickness counting as holiday at all.
In any event the giving of notice is more than a formality. Without it the employer who is not otherwise paying the employee, or is paying him only sick pay, will not know whether, or – just as importantly – when, he is obliged to make any [holiday] payment …The EAT added that there is no general duty on employers to inform its workers of their right to take holidays while they are on sick leave.
Fraser v Southwest London St. George’s Mental Health Trust [EAT/0456/10]
5 comments:
But if the holiday year runs from 1 Jan - 31 Dec. A worker was sick from 1/1/11 and is dismissed on 4/11/11. The worker should be paid for his/her 2011 holidays although he/she did not ask to take any 2011 holidays.
But the Fraser case applies to a situation, e.g. where the worker was sick from 1/1/10 and is dismissed or returned to work on 4/11/11. The worker will lose their 2010 holidays if they did not ask to take those holidays during 2010.
I agree.
I think it's best HR practice to tell a worker that he/she can take holidays while he/she is on sick leave although the EAT said that an employer was not obliged to do so.
Please note that the Fraser case conflicts with the Larner case. Hopefully, this issue will soon be resolved by the Court of Appeal.
In the Larner case, the holiday year ran from 1 April to 31 March. Mrs Larner was sick from 5/1/09 and was dismissed on 8/4/10. The EAT held that she did not lose her 2009/10 holidays although she did not ask to take those holidays during 2009/10.
The Larner case is available at: http://www.bailii.org/uk/cases/UKEAT/2011/0088_11_2907.html
On 25 July 2012, the Court of Appeal delivered its decision in the Larner case.
A summary of the case is available at: http://www.trotman-employment-law-alerts.com/2012/07/court-of-appeal-clarifies-holiday-rules.html
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