In case of Fraser v South West London St George’s Mental Health Trust the Employment Appeal Tribunal (EAT) addressed the question of whether workers have the right to statutory holiday pay under the Working Time Regulations 1998 (WTR) regardless of whether they take or give notice to take holiday.

The facts
Mrs Fraser, a nurse, went on sick leave in November 2005 and did not return to work before her dismissal in 2008. Mrs Fraser argued that she was entitled to the full three years statutory holiday pay on termination of her employment.

Her employer ( The Trust) paid her in lieu of her final years statutory holiday entitlement as required by regulation 14 of the Working Time Regulations 1998 (WTR) arguing that although he has the right to statutory holiday during the previous two years, she was obliged under regulation 15 WTR 1998 to exercise that right (which she had not).

The decision
The Employment Appeal Tribunal (EAT) held that workers are only entitled to claim statutory holiday pay (regulation 16 WTR 1998) if they take statutory holiday or give notice to their employer (regulation 15 WTR 1998) and that it would be contrary to the purpose of those regulations if workers were able to claim statutory holiday pay regardless as to whether they take time off.

In relation to the issue of Statutory holiday pay while infirm, the EAT held that workers on sick leave have a choice; take statutory holiday while off sick or request that it be deferred, and that there is “No entitlement to holiday pay unless worker tries to take holiday”.

What this means for Employees
It is essential that if you intend to take pay for statutory holiday that you inform your employer that you are doing so. Being on sick leave does not automatically entitle you to carry over your unused holiday to when you return from work (or as in the case above, claim for payment after dismissal) you must communicate with your employer to either defer your holiday or take it while off sick.

The Backhouse Solicitors Team

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