Chester 01244 405555

Grosvenor Court
Foregate Street Chester
Cheshire CH1 1HG
DX: 19990 Chester

Shrewsbury 01743 443 043

Lakeside House
Oxon Business Park
Shrewsbury SY3 5HJ
DX: 148563 Shrewsbury 14

Manchester 0844 800 8346

Pall Mall Court
61-67 King Street
Manchester M2 4PD

Send us a message
Our Offices

Use it, defer it or lose it

8th December, 2011

On 3 November 2011, it was held by the Employment Appeal Tribunal (EAT) in Fraser v South West London St George’s Mental Health Trust UKEAT/0456/10, that workers are only entitled to statutory holiday pay under the Working Time Regulations 1998 (the Regulations) if they take statutory holiday or give notice to their employer that they wish to take such holiday.

The case involved a nurse (Mrs Fraser) who was absent on long-term sick leave before eventually being dismissed (after 4 years sickness absence).   Mrs Fraser was paid in lieu of her final leave year’s statutory holiday entitlement but not paid in lieu of her untaken holiday entitlement for the previous two leave years.  She brought a holiday pay claim which was rejected both in the Employment Tribunal and the EAT.

Whilst it was accepted that Mrs Fraser had accrued the right to holiday leave during the years in question, the EAT held that she should have given notice if she intended to exercise that right.  She had not done so and as such, her claim failed.

It was clear from Pereda v Madrid Movilidad SA [2009] IRLR 959 that, as far as the Working Time Directive is concerned, a worker on sick leave has a choice: to take statutory holiday and be paid in respect of it whilst off sick; or to request that the holiday to be deferred. Therefore, if Mrs Fraser had wanted to defer taking her statutory holiday until her return to work, she should have asked the Trust to allow this. Since she did not, under the Regulations it meant that her entitlement to statutory holiday and to corresponding holiday pay, lapsed at the end of each leave year.

This is a positive decision for employers since the onus in on employees to inform employers whether they are to take their holiday entitlement or to defer it.  If the employee fails to do this then it is the employee who will lose their entitlement to holidays and holiday pay.

In light of this case, should your holiday and sickness absence policies need updating, please contact our specialist team of employment solicitors who can offer a free review of such policies.

You might also be interested in...

Legal expert’s data protection workshops pull in the crowds

22nd May, 2018

With the General Data Protection Regulation (GDPR) coming into force in May, businesses across Shropshire have been flocking to hear more about the new laws Paul Bennett, a partner at law firm Aaron & Partners LLP, has been delivering seminars in partnership with the Shropshire Chamber of Commerce An employment solicitor from Shrewsbury is urging businesses across the... Read More »

Experienced HR leader joins Aaron & Partners LLP

15th May, 2018

Experienced HR leader joins Aaron & Partners LLP Law firm with offices in Chester and Shrewsbury appoints Kate Robertson to drive HR strategy for more than 120 staff and to support the company’s growth Chester law firm Aaron & Partners LLP has strengthened its senior leadership team with the appointment of an experienced human resources manager. Kate Robertson... Read More »

When you should NOT pay the bailiff…

24th April, 2018

Jan Chillery, Insolvency Partner at Aaron & Partners LLP, shares her experience and the reasons why we should be cautious before paying so-called “bailiffs” over the phone or online without vetting them first. My neighbour has told me that recently he had a CCJ (County Court Judgment) against him. A day or so later, he received a phone call... Read More »

Contact Us