Drury have lost count as to what round this fight has got to or even who is in the blue or red corner! However, the latest round has definitely ruled in favour of employees. The case of NHS Leeds v Larner has recently been heard at the Employment Appeal Tribunal and ruled that en employee is entitled to be paid for their annual leave even if they have been absent for the whole of a holiday year through sickness, regardless of whether or not they have submitted a request for the leave before the end of the holiday year or not.
To date Drury have been able to advise that if the employee on long term sick has not requested the holiday then employers could try to argue that the holidays could not be carried over from one holiday year to another. However, this case has now ruled out this option and makes it clear that no formal request for leave has to be made, the employee is entitled to be paid for the annual leave as due to their sickness absence they have been prevented from exercising their statutory right to paid annual leave.
Of very little consolation is that the Employment Appeal Tribunal did reiterate that the position would be different in the case of a fit employee who fails to make any request for leave during the whole of the holiday year, they would not be entitled to be paid in lieu of the holiday as they have had their opportunity to exercise their right to take the leave.