An employment tribunal has recently dismissed a claim for holiday pay by a worker who had been on long term sick leave on the basis that he had not requested holiday and so had not been “denied” it. Whilst not binding on other tribunals this decision gives an insight into how tribunals may deal with claims for accrued holiday on termination of employment.
In Khan-v-Martin McColl Mr Khan went on long term sick leave in May 2008 and did not return to work prior to his resignation in August 2009. His employer paid him in lieu of holiday accrued in 2009 prior to his resignation but not in relation to holiday accrued but not taken during 2007 and 2008. Mr Khan brought claims for unlawful deductions from wages and under the Working Time Regulations 1998 in relation to the accrued holiday from 2007 and 2008. The tribunal found that, as Mr Khan did not request holiday during these periods, he had not been “denied” it by his employer. The employer had argued that, as there had been no deductions from wages during 2009 (because Mr Khan had been paid in respect of his leave accrued during the 2009 holiday year), any claim in relation to the previous entitlement was not within the 3 month time limit for such claims and therefore was out of time.
This is an interesting decision in the light of the European Court of Justice decision in Stringer and others -v- HM Revenue and Customs which confirmed that workers on sick leave continue to accrue holiday rights. It follows from this that employees on long term sick leave who do not request holiday in the year in which it is accrued may lose the right to this leave (or payment in lieu of it) at the end of their employment.
For more detail on this case, or if you need assistance with an employment law issue, contact Integra at contact@integralegal.co.uk