The EAT (HHJ McMullen) overturned this decision. The claimant was entitled to work in the UK at all times and this was not affected by the failure obtain a new stamp in her passport. It was therefore irrelevant whether the employer was behaving reasonably, or thought it was behaving reasonably, or that it was worried about penalties. The claimant's claim therefore succeeded.
HOLIDAY PAY AND SICK ABSENCE
10 November 2011 It is clear from CJEU cases that workers continue to accrue annual leave entitlement during sickness absence, and that workers can choose to take annual leave at the same time as being absent due to sickness. But can such an employee claim holiday pay under Reg 16 (1) of the Working Time Regulations where no notice to take the leave has been given to the employer under WTR, Reg 15? Daniel Barnett’s Employment Law Bulletin reports: No, says the EAT (Underhill P) in Fraser v St George's NHS Trust . In this case the employee was injured at work and was on sick leave for four years until her dismissal. For the last two years of her employment she received no pay. On the ending of her employment she sought 4 weeks holiday pay in relation to each of those two years. In the light of Stringer v HM Revenue & Customs Commissioners [2009] ICR 932 there was no doubt that the employee had accrued the right to leave during the years in question. But the employer argued that if she wanted to exercise that right she had to give notice to the employer under Reg 15 (1) – which she had not. The EAT held the claim should fail. An employee is only entitled to holiday pay under Reg 16 (1) if she has actually taken the leave to which the pay relates and has done so in accordance with the WTR by giving notice pursuant to Reg 15. The authorities of List Design Group Ltd v Catley [2002] ICR 686 and Canada Life Ltd v Gray [2004] ICR 673 were wrong, and Kigass Aero Components Ltd v Brown [2002] ICR 697 was to be preferred. The EAT also considered that the condition of notification by the employee under Reg 15 of the WTR was not inconsistent with the CJEU ruling in Pereda v Madrid Movilidad [2009] IRLR 959. CJEU RULES ON RIGHT TO CARRY OVER HOLIDAY ACCRUED WHILST ON LONG TERM SICK LEAVE 20 November 2011 The Court of Justice of the European Union (CJEU) has handed down its decision in the case of KHS AG v Winfried Schulte, an important case about whether a worker on long term sick leave has the right to carry forward annual leave accrued whilst on sick leave to a subsequent holiday year and, if so, whether national laws can place limits on this right to carry forward. Tim Wragg, Senior Associate at international law firm Eversheds comments: "In Schulte the German courts asked the CJEU for guidance on how long holiday accrued on sick leave can be carried forward. Its decision today provides some comfort for employers, as the Court’s decision sanctions the placing of some limits on the ability of long term sick employees to carry forward such accrued holiday, on the basis that allowing a worker to take accrued leave several years after the leave year to which it related would not achieve the Working Time Directive's purpose of enabling the worker to recuperate from the effort and stresses of that year. In Schulte, the CJEU has held that a German national law does not breach the Working Time Directive where it provides that the annual leave entitlement of a worker who is unfit for work for several consecutive holiday years extinguishes 15 months
CIPP Policy News Journal
09/10/2012, Page 55 of 234
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