Fraser Preferred to Larner When Opportunity for Leave Existed

On behalf of Hair Division Ltd, Employment Law Clinic successfully argued that Fraser should be preferred to Larner where the worker had the “opportunity” to take leave during the leave year, even if they had not exercised this right before going on sick leave at the end of the leave year.

The Employment Appeals Tribunal (EAT), in the case of Hair Division Ltd v Macmillan, has addressed apparent conflicts between the cases of Fraser (a case that ruled workers either ‘use it or lose it’ [holiday entitlements]) and Larner (a case that ruled that, where a worker is unable to take their annual leave due to sickness, they are entitled to carry this entitlement forward to a subsequent year).

The employment tribunal had considered that there were “two directly contradictory decisions of the EAT on the position where a worker is absent on long term sick leave and does not attempt to take his or her leave entitlement during a leave year and whose employment terminates during the following leave year”.

The EAT disagreed, finding that the “ratio of Larner does not, however, apply where the employee was not prevented from taking her paid annual leave by sickness.”

In its judgment, The Honourable Lady Smith, sitting at the EAT Edinburgh, found that

“if a worker or employee was at work during the relevant leave year for a period which at least matched her annual leave entitlement and had not requested leave during that period, then no entitlement to holiday pay arises after the end of that leave year.”

In the case of Hair Division, given the employee had “almost seven months available to her during which she was not unable to take leave due to sickness absence but did not do so” the EAT concluded that “Thus, we agree with Mr Limpert that Larner did not apply.” The employee had been in work from 8 March 2010 (commencement of employment) to 28 October 2010, at which point the claimant went on sick leave for the balance of the leave year; the leave year ran from 1 January to 31 December.

Filed under: Contracts of Employment, Employment Tribunals, Flexible Working, General News by Employment Law Clinic           Post created on: November 7th, 2012