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 4 All ER 1006, Court of Appeal - Michael Ford QC
The Court of Appeal has given judgment (on 25 July) in NHS Leeds v Larner, an important ruling on annual leave under the Working Time Regulations 1998.
The judgment has implications for all workers who are unable or unwilling to take annual leave owing to sickness. Mrs Larner was absent on sick leave for the whole of the 2009-10 leave year and consequently was unable to take holiday in that year. When her employment terminated in the following leave year while she was still off sick, her employer refused to pay her compensation for the untaken holiday in the 2009-10 leave year. The employer argued that she was not entitled to that leave because she had not made a request to take leave or carry it over. Rejecting that argument, the Court of Appeal (Mummery LJ, Tomlinson LJ, Henderson J) held as follows (i) following Dominguez v Centre Informatique  IRLR 321 the right to annual leave in Article 7 of the Working Time Directive was directly effective against an emanation of the state such as an NHS trust; (ii) under Article 7, if a worker is unable or unwilling to take leave owing to sickness, she must be allowed to take it at another time, if necessary in a later leave year; (iii) it is not a requirement of Article 7 that a worker must make a request to take or carry forward annual leave; (iv) as against a private sector employer, it was possible to interpret the Working Time Regulations to comply with Article 7, by reading words into those Regulations. The Court of Appeal declined to decide the position in relation to the additional period of leave conferred by regulation 13A, which has been addressed by the recent decision of the Court of Justice in Neidel  IRLR 607.
The result of the decision in Larner is that, regardless of whether a worker is employed by a public or private employer, if a worker is unable or unwilling to take the four weeks’ annual leave conferred by regulation 13 of the Working Time Regulations owing to sickness (i) he or she must be allowed to take it at another time, if necessary by carry over into a later leave year and (ii) compensation for untaken leave on termination must include compensation for such untaken leave, even if it relates to leave not taken in previous leave years.
Michael Ford acted for Mrs Larner, instructed by Marion Batten of Thompsons.