NHS Leeds v Larner

I am going to miss Lord Justice Mummery. His judgments are models of clarity and his instincts are flawless. When you lose, as I did comprehensively in Larner, you know exactly why and the merits of the alternative analysis are put so persuasively you struggle to disagree even when you are paid to.

The critical question in the appeal is identified in the opening paragraph of the judgment:

“In what circumstances is a worker, who has not taken paid annual leave in the relevant leave year because of absence from work on long term sick leave, entitled to payment in lieu?”

After a meticulous analysis of the European and Domestic legislation (and a graceful if merciless dissection of my submissions on behalf of the Appellant) the question is answered in the final paragraph:

“(1) The claimant was entitled to paid annual leave in the leave year 2009/10;

(2) She was prevented from taking her paid annual leave because she was sick;

(3) She was entitled to carry her untaken paid annual leave forward to the next leave year in 2010/11 without making a prior request to do so;

(4) As her employment was terminated in that year, before she could take the carried forward leave, she was entitled to payment on termination for the paid annual leave she had been prevented from taking”

It was the third point that was the core issue in the appeal. reg 13 of the WTR does not appear to allow untaken leave to be carried over at all. It was clear from Stringer (C-520/06), Schultz-Hoff (C-350/06), Pereda (C-277/08) and other cases before the ECJ that carry over had to be allowed if sickness prevented the employee from having the opportunity to take the leave during the year in which it accrued. It was argued, however, that Pereda required that a specific request to carry over be made in the absence of which the entitlement was lost. Their Lordships concluded that references in Pereda to carry over requests merely reflected the particular facts of the case and were not an articulation of a general principle that a request was always necessary.

The claimant was able to rely on the Working Time Directive (as NHS Leeds was an emanation of the State). However , the Court concluded that the Domestic Law would in any event have had to be read in such a manner as to reach the same result in private sector cases.

The Court left open the question whether the period of additional leave conferred by Reg 13A had to be dealt with in the same way. The CJEU case of Neidel (C-337/10) suggested that it did not but the Appellent was refused permission to take the point as it had not been taken below.

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2 thoughts on “NHS Leeds v Larner”

  1. I rejoice with Larner as her victory over her employer became a precedent for my case against my Trust. My case was on hold till the outcome of Larner be heard and I am overjoyed as I am also a winner just as she is, because the appeal against my award at the employment tribunal will now be thrown out or withdrawn. Thank you Lord for hearing my cry and prayers. I do not know Larner ,but since I heard her case had to be heard before decision on mine is made , I had been praying along with my children that she has to win and she did. Halleluyah.

  2. I have read the comment by Ronnie. He was lucky. I had been off work over 3 years (10/2003 to 3/2007)with stress illhealth through bullying/harrassment (boss).On my return to work I encountered a number of contractual issues one of which was when my employer stated that i was not entitled to payment for hols accrued when off work sick. I disputed this but was contually told that i was not entitled to them. In the summer of 2011 i saw an article in a paper by a solicitor which stated that i should get paid for hols accrued while off work ill.
    i wrote to my employer (as i was then over retirement age and my employer had terminated my employment)but was first told to get —– and further letters were ignored. I then issued court proceedings and the case was heard in court on 4th july 2012. I referred to larner and stringer case laws but at that time the most recent case was the fraser case when the employer won mainly because fraser had not requested the hols during when she off work ill. The defence used the fraser case amongst other things and i lost my case. Because of lack of funds i represented myself and got hammered. An absolute awful experiance. It took me a couple of months to recover. They say that the lay person can do this himself. No. In sept i became aware that the larner case had gone to a court of appeal on 25 July 2012 and the result had gone in favour of larner-again. I believed that this could have had implications on my case as it happened only 3 weeks after my case. Namely my case should have been postponed until after this hearing as was Ronnies and which then meant that as the result of the larner hearing was in my favour i would probably have won my case.Unfortunately i did not know of this impending hearing and therefore could not refer to it in court or after as the reason for an appeal. The defence solicitor and barrister and also the judge never mentioned anything of the existance of this forthcoming hearing and especially as it was only 3 weeks after my case. After i found out I visited the court in late sept and was told to write and explain and because of the special circumstances it was possible that my case might be reopened and reconsidered.I did this and received a short reply saying that i did not appeal and in time and therefore the result still stands. No mention of special circumstances. Sorry to harp on but i feel very bitter about this. I would love to pursue all this but cannot do it on my own. It seems what happened to Ronnie should have happened to me. I think a few wrongs have occurred and i have suffered as a result.I have lost out in many ways not to mention the cash value of the holidays. There does not seem to be a justice.

    Long Grouse over – Brian – sorry to whoever reads this.

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