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Requesting holiday during sickness absence

In this month’s E-News, we consider whether an employee loses their entitlement to holiday if he/she fails to request holiday during sickness absence. We also consider two cases involving the breakdown in trust and confidence; the first where the employer has lost trust, and the second where the employer has lost trust. In the News this month we consider the further changes in to Tribunal procedure proposed by the Government.

Does a failure by an employee to request holiday during sickness absence mean they lose the right to holiday?

Mrs Larner worked for NHS Leeds as a Clerical Officer until she was dismissed on the grounds of capability on 8 April 2010. Mrs Larner was off sick from January 2009 until her dismissal. Mrs Larner brought a claim in the Employment Tribunal against NHS Leeds for failure to pay her accrued statutory holiday entitlement that she did not use during her sickness absence. NHS Leeds claimed that she did not request holiday and therefore lost her entitlement.

The Employment Tribunal held that she was entitled to be paid her holiday despite the fact that she had not formally requested it to be carried over into the following leave year. NHS Leeds appealed to the Employment Appeal Tribunal, which upheld the Employment Tribunal’s decision. NHS Leeds then appealed to the Court of Appeal. The Court of Appeal unanimously dismissed the appeal. The Court of Appeal held that Mrs Larner was entitled to carry her untaken paid leave forward to the following leave year in 2010/2011 without making a prior request to do so.

This is an important decision for employers in that, where employees are off sick for a significant period of time, holiday will continue to accrue and carry over into the next leave year automatically. In addition, compensation for untaken leave on termination must include compensation for such untaken leave, even if it relates to holiday not taken in previous leave years.

Can an employer dismiss an employee for some other substantial reason in relation to criminal allegations that have not been proven?

In this case, the Claimant, Mr Leach, was dismissed on the grounds of some other substantial reason after his employer, a public authority, discovered allegations by the police that he had been involved in child abuse in Cambodia.

Mr Leach had not been convicted of any offence: it was simply an allegation.

The Employment Appeal Tribunal upheld the Employment Tribunal’s decision that dismissal was fair, even though the alleged conduct, which had neither been proven nor admitted, had no direct relationship to the Claimant’s work. Mr Leach appealed to the Court of Appeal.

Mr Leach argued that the information supplied by the police was not reliable and to dismiss him to avoid potential reputational damage even when he did not work with children was unfair.

The Court of Appeal held that in relation to the fairness of the dismissal, this would depend on the Tribunal’s findings of fact. In this case, the Tribunal concluded that the reason for the dismissal was substantial. To determine whether a reason is substantial enough to justify dismissal, the Tribunal should look at all the circumstances of the case.

The reason for dismissal “some other substantial reason” is an increasing reason used by employers for a breakdown in mutual trust and confidence. The Court of Appeal has held in this case that it should not be used as a convenient label to stick on any situation. Therefore, employers, when contemplating dismissal for some other substantial reason, should ensure that the dismissal procedure is carefully considered, including undertaking an investigation even if the employer believes that there has been a breakdown in trust and confidence.

Can a breach of trust and confidence by an employer be cured?

Mr Assamoi worked for the Spirit Pub Company (Services) Limited; a Company that runs a number of public houses. Mr Assamoi had a fraught employment relationship in which he received various disciplinary warnings and raised a number of grievances. A dispute had arisen whereby Mr Assamori’s manager called an emergency meeting, which was not attended by Mr Assamoi because he was on annual leave. Mr Assamoi’s manager suspended the Claimant because he failed to attend the meeting. During the course of the investigation, the Respondent revoked the suspension, as it was clear that Mr Assamoi’s manager had authorised the annual leave and he should not have forced him to attend the meeting. In light of the relationship issues they offered Mr Assamoi a transfer to another pub. Mr Assamoi requested an apology, which was not forthcoming and therefore Mr Assamoi resigned claiming constructive dismissal.

The Tribunal held that the outcome of the investigation prevented Mr Assamoi’s manager’s conduct from becoming a repudiatory breach by offering a transfer to another pub.

This case differs from the Court of Appeal’s decision in the case of Bournemouth University v Buckland, which provides that if the employer fundamentally breaches an employee’s contract, it cannot cure the breach.

This case differs in that the alleged breach did not amount to a repudiatory breach and the Respondent attempted to restore the working relationship by offering a transfer of Mr Assamoi’s employment prior to the Mr Assamoi’s resignation. Whereas in the case involving Mr Buckland the conduct amounted to repudiatory breach which had been accepted and therefore could not be cured.

In the news

The Government has planned to introduce new Tribunal rules, which are simpler and include some significant changes, which include:-

  1. Requiring Tribunals to undertake a paper sift of weak cases early on in the process and dismiss claims of no arguable complaint or response.
  2. Removing the £20,000 cap for costs award.
  3. Allowing Tribunals to set timetables for oral evidence and submissions.

In addition, the Ministry of Justice has published its response to consultation on charging fees to bring claims in the Employment Tribunal. As such, the Government is intending to introduce fees in the summer of 2013.

Fees will be charged in two stages: the first, at the issue of the claim (“Issue Fee”); and the second prior to the Hearing (“Hearing Fee”). The proposed fee structure envisages two levels of fees.

  • Level 1 – these are claims that are straightforward claims for defined sums such as unauthorised deduction from wages, redundancy payments and, as such, claims would attract an Issue Fee of £160 and a Hearing Fee of £230.
  • Level 2 – these are claims that are more complicated, including those which raise issues of unfair dismissal, discrimination and equal pay. The Issue Fee is £250, and the Hearing Fee is £950.

Many people on low incomes may be exempted from the fees.

The Employment Tribunal will have the power to order the unsuccessful party to reimburse fees to the successful party.

Please contact Sejal Raja if you have any questions in relation to this article.

Sejal Raja
t: 020 7227 7410
© RadcliffesLeBrasseur


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.