annual leave request letter nhs

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Annual leave and holiday pay

This guide includes advice on your statutory entitlement to annual leave, Agenda for Change terms and conditions for NHS staff and best practice for part time employees.

Taking annual leave

Annual leave should be taken with the agreement of your employer. There is no legal right to choose when to take your annual leave; your employer will need to balance your right to take leave against the needs of the service and to maintain appropriate staffing levels. 

You should check any local policies in place as normally there is a clear process you must follow when booking annual leave.  Generally, you are required to give notice to the employer of when you wish to take leave. In absence of any specific local policy, the notice period should be at least twice the period of the leave to be taken so if you wish to take two weeks off, you should give four weeks’ notice. 

Your employer can refuse your request for annual leave, but they must notify you of this within a period equivalent to the period of leave. Your employer should also act reasonably when dealing with annual leave requests; for example, they should operate a fair process for dealing with multiple requests for the same day off.

Your employer can also require you to take all or any of the leave to which you are entitled at specified times, provided you are given prior notice. Check your contract for further information.

Cancellation of annual leave by your employer

The RCN expects employers to protect the health, safety and well-being of all health and care staff. This includes ensuring that nursing and other health care staff can take paid annual leave, as well as being able to take rest periods and breaks during shifts.  If you have followed your contract and policy on annual leave, and you have obtained the employer’s consent, it may not be reasonable for the employer to unilaterally cancel your leave. This would only be allowed if the contract or local agreement permitted such a cancellation. If your employer did this without any such provision in the contract or in the absence of any emergency situation, e.g. a pandemic, then you could have a claim for breach of contract (including recovery of holiday expenses already incurred). During this time of unsustainable pressure, the RCN is calling on all health and care employers to put in place appropriate arrangements which ensure that: 

• Wherever possible, booked annual leave should be honoured. Guidance issued by the DHSC in England confirms that employers should only consider cancelling an individual’s pre-agreed annual leave in exceptional circumstances. 
• The equality impact of any decision is considered. 
• Any restrictions on staff taking annual leave are staggered so all staff get to take leave. This has been specifically recommended by the NHS in Scotland.
• Any restrictions are prioritised in line with the needs of maintaining essential services, following consultation and agreement with local staff sides and trade union representatives. 
• DHSC guidance for England also reminds employers that they should give the appropriate statutory notice to cancel annual leave and consider whether compensation is appropriate for any out of pocket expenses that a staff member may incur as a result of cancelling their holiday plans. 

If you work in the NHS, please also see the NHS Staff Council statement on annual leave during COVID-19 . If your line manager is trying to cancel your annual leave, in the first instance please check your contract and/or local policy. Please raise the issue with your HR Department or a more senior manager and ask the reason for this in writing. If you need further support, contact us .

Carrying over annual leave

If you don't take all of your statutory holiday entitlement during your leave year, your employer may allow you to carry over the left over days to the next holiday year. You must take at least four weeks’ holiday a year, so only holiday on top of this can be carried over. Arrangements for carry-over of contractual annual leave (over and above the statutory minimum entitlement) will be dictated by your contract and/or local policy.

Basic and contractual entitlements

Every worker whether part-time or full-time is entitled to statutory paid annual leave. Since April 2009, workers have been entitled to 5.6 weeks annual leave.

To calculate statutory annual leave entitlement, multiply the number of days you work a week by 5.6. For example, if you work a five day week you would be entitled to 28 days annual leave a year:

5 days x 5.6 weeks = 28 days per annum.

The above is the minimum right to paid holiday, but your employer may offer more than this in your contract or terms and conditions. This is known as your contractual (as opposed to statutory) annual leave.

Contractual annual leave entitlement may not be less generous than the statutory provision. Contact us  if you are being denied either your statutory or contractual leave rights.

Term-time and part-year workers’ holiday pay

A worker is entitled to 5.6 weeks of paid statutory annual leave under the Working Time Regulations 1998.  For those workers who work

• irregular hours or different hours in different weeks, or
• zero hours in some weeks,

a week’s pay should be calculated as an average of the preceding 52 weeks’ pay, ignoring any week where earnings were zero. This 52-week reference period starts with the week before the worker will be on annual leave and counts back until it includes 52 weeks in which the worker was paid.  

For example, if you work term-time only and  are not provided with work during school holidays, then any week in which you were not paid does not count in the 52-week reference period.

Bank/public holidays

There is no automatic statutory entitlement to bank and public holidays. If you are given a paid day off for a bank holiday your employer can count this as part of the 5.6 weeks statutory annual leave entitlement. You should therefore check your contract of employment for your annual leave entitlement.

If you are employed within the NHS please also see annex 25 of the NHS Terms and Conditions for information about public holidays over the Christmas and New Year periods. 

Part-time workers

It is best practice for part-time staff to receive the same amount of public holiday annual leave as full time staff, pro rata.

For example, a member of staff works three days a week on Tuesday, Wednesday and Thursday for six hours per day. This totals 18 hours per week. In this workplace, full time workers work 37.5 hours a week over five days. The average working day over a five day week is 7.5 hours. Full time staff receive 60 hours bank holiday leave in total (7.5 hours x 8 public holiday days).

The part time member of staff works 18 hours a week. 60 hours, divided by 37.5, multiplied by 18 is 28.8. The part time member of staff should therefore receive at least 28.8 hours of public holiday leave a year. This may be taken at any time in agreement with the employer.

If this best practice is not followed, it is potentially a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (available from  www.legislation.gov.uk ).

However, some employers may not give full time workers a day off if they do not usually work on a public holiday day. For example, they may not give an annual leave day for a public holiday which falls on a Monday to a full time worker contracted to work five days a week, Tuesday to Saturday. In such cases, not giving the part time worker public holiday annual leave may not be unlawful as the part time worker is not being treated less favourably than a full time worker.

For more information on the rights of part-time workers, please see our guidance on  part-time workers.

Agenda for Change: entitlements for NHS employees

The following entitlements are taken from section 13 of the NHS Terms and Conditions of Service Handbook . This entitlement is for a full- time worker. Part-time staff receive a pro rata amount of annual leave and public holiday days.

• on appointment: 27 days leave and eight general public holiday days
• after five years service: 29 days leave + eight days general public holiday days
• after 10 years service: 33 days leave + eight days general public holiday days.

If you have previous reckonable service in the NHS this will also be counted towards your annual leave entitlement. For more information please see our guidance on  Agenda for Change .

If you are employed within the NHS please also see annex 25 of the  NHS Terms and Conditions  for information about public holidays over the Christmas and New Year periods. 

Overtime and annual leave pay

The European Working Time Directive gives workers and employees the right to four weeks of paid annual leave every year. This leave is known as statutory annual leave. 

The Working Time Regulations give workers and employees the right to an additional 1.6 weeks’ leave.

Employees can also be granted contractual annual leave as part of their terms and conditions of employment. For example, RCN members employed under Agenda for Change (AfC) are entitled to 27 days, 29 days or 33 days annual leave (inclusive of the four weeks statutory annual leave).

Workers and employees have the right to be paid their ‘normal’ pay during a period of annual leave. Historically, normal pay included things such as productivity bonuses and results-based commission payments. It also includes overtime.

For the purposes of annual leave pay, overtime falls into three categories.

• Contractual overtime – that which your employer must offer you and you must work as a term of your employment contract.
• Non-contractual compulsory overtime – that which your employer does not have to offer you, but if it does, you must work it. 
• Voluntary overtime – that which you can refuse to work if offered.

In all cases, overtime is classed as hours worked in excess of your minimum contracted hours. It therefore applies to members working part-time hours as well as members working full-time. 

Annual leave pay

Workers and employees have the right to have contractual overtime taken into account when calculating annual leave pay. In 2014, in the case of Bear Scotland & Others v Fulton and Others, the Courts decided that workers and employees also had the right to have non-contractual compulsory overtime taken into account when calculating holiday pay for the four weeks’ statutory annual leave granted by the Working Time Directive. In 2019, in the case of East of England Ambulance Service NHS Trust v Flowers and Others, the Courts extended this to include regularly worked voluntary overtime. The Courts also decided that overtime had to be taken into account when calculating pay for annual leave granted under Agenda for Change.

For RCN members employed on Agenda for Change terms and conditions, overtime must be taken into account when calculating pay for all your annual leave. 

For RCN members not employed on Agenda for Change terms and conditions, overtime must only be taken into account when calculating pay for your four weeks’ statutory annual leave granted by the Working Time Directive. This does not apply to the additional 1.6 weeks leave granted by the Working Time Regulations.

For all RCN members, overtime will only count towards annual leave pay if you have been paid for that overtime. If, for example, you have taken time off in lieu, this time would not count when calculating annual leave pay.

Incorrectly paid annual leave

If you think you have not been paid correctly for your annual leave, you should approach your employer in the first instance. You should raise this with your line manager, using one of the letter templates below:

• for members employed on AfC terms and conditions in England and Wales
• for members employed on AfC terms and conditions in Scotland and Northern Ireland
• for members not employed on AfC terms and conditions in England and Wales
• for members not employed on AfC terms and conditions in Scotland and Northern Ireland  

Please do not delay in taking action if you believe you have not been paid correctly for your annual leave. If your line manager cannot or will not help, you should contact us  for further advice. 

The time limits for making an Employment Tribunal claim are 3 months less 1 day from the date you received your last incorrect annual leave payment. In some circumstances, you may also be able to bring a County Court claim. If you believe you need to make a legal claim, you should contact us  for further advice.

Unsocial hours enhancements

You should be paid annual leave at your normal rate of pay. Therefore if your normal rate of pay includes regular enhancements, these could be seen to be part of your normal rate of pay. Your employer should have a policy covering pay during annual leave.

If you work under  Agenda for Change  terms and conditions, your pay on annual leave is covered under section 13.9 of the NHS terms and conditions of service handbook. This states:

"Pay during annual leave will include any regularly paid supplements, including any work outside normal hours and high cost area supplements. Pay is calculated on the basis of what the individual would have received had he/she been at work."

Bank shifts

You should check your bank contract for information on how annual leave for your bank work is calculated.

Further information

ACAS guidance - Holidays and holiday pay

TUC publication: Working time, breaks and holidays - Know Your Rights 

Find out more about the Fair Pay for Nursing campaign and how you can get involved.

Get answers to your contract questions including notice queries and whether your employer can change your contract.

Check your entitlements to pay - whether you work in the NHS or the independent sector.

Page last updated - 26/12/2022

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Annual Leave/Time off Work FAQs

• The annual leave year starts on 1 April and ends on 31 March every year.
• A line manager must give anyone leaving the organisation 1/12th of their annual leave entitlement for each complete month worked in that year.
• The line manager will need to deduct any annual leave the employee has already taken from that.
• The line manager will need to include this information on the employee's termination form which is sent electronically to the Payroll department who will then ensure that the individual receives payment for that outstanding leave.
• However, if the employee had taken more leave than their entitlement by the time they left, the Payroll department would have to deduct this from their final salary.
• If that is not possible, Payroll will recover this directly from the employee themselves in line with the Trust's overpayments procedure.
• Yes, as annual leave is calculated based on aggregated service.
• If a member of staff has worked for another NHS employer, then that period of time is counted into their overall annual leave entitlement (29 days for 5 years NHS service or more, 33 days for 10 years NHS service or more).
• That means that this member of staff, assuming they work full time, is entitled to 29 days annual leave (instead of 27) and 8 bank holidays.
• This applies, whether or not they have had a break in service at any time during their employment, and irrespective of the length of the break.
• They would, however, need to provide documentary evidence such as a staff transfer form, employment contract, pay slips, pension record, P60, P45.
• Yes it is true that your entitlement should be rounded up to the nearest half an hour, but this does not apply to your contracted hours therefore if your contracted hours are eg. 14.88 per week and due to your length of service you would be entitled to 27 days annual leave (if you worked full time and on a standard 7.5 hour shift) the calculation would be as follows:
• 14.88 divided by 5, multiplied by 27 = 80.35, rounded up will be 80.5 hours
• This method also applies for public holiday entitlement calculations.
• The law says that part time employees should be treated the same way as other employees, and that applies to their holiday entitlement as much as anything else.
• That means that if an employee works half time, they are entitled to half the full time annual leave entitlement.
• If the final figure is uneven (e.g 4.75 hours), then the line manager should round it up to the nearest half hour (i.e. 5 hours in this case).
• Employees working full time get 27 days holiday plus 8 bank holidays when they first start with the organisation.
• Employees with 5 years NHS service get 29 days holiday and 8 bank holidays.
• Employees with 10 years NHS service get 33 days and 8 bank holidays.
• Yes, all employees should receive a public holiday entitlement.  In the situation where an employee works on Tuesday, Wednesday and/or Thursday there could be a year where a shift will never fall on a public holiday.  This employee would still receive an entitlement based on their weekly contracted hours which should then be used as annual leave.
• The law states that part time employees should be treated the same as other employees. Bank Holidays should be pro-rated to their proportion of hours they work per week e.g. if a part time employee works 18.75 hours per week (0.5 wte) they will be entitled to 4 bank holiday days each year.
• This may mean they need to add or subtract days from their total annual leave allowance depending on how many bank holidays fall on their working days in that year.
• Employees should give their line manager as much notice as possible.
• The longer the period of leave, the more notice that should be given so that the necessary arrangements to cover their absence can be made.
• Employees can give as much as 12 months notice of an annual leave request (although they don’t normally have to give that much).
• Any requests for leave should be recorded on the relevant annual leave record, and the line manager should reply as soon as possible.
• If a line manager refuses a request for leave, they need to explain why. Employees should not, therefore, make any financial commitments (such as buying a ticket) before they have received agreement to the leave.
• If there is a system whereby only a certain number of people can be off at any one time, or a system for dealing with requests at popular times (such as Christmas and school holidays), the line manager will need to ensure that they apply them fairly and consistently, and that employees understand the procedure.
• No this is false, you should deduct the number of hours you would have worked on that day.  If you are off for a whole week then you would deduct your weekly contracted hours.
• The NHS terms and conditions handbook explains that where staff work standard shifts other than 7.5 hours excluding meal breaks, annual leave and public holiday entitlements should be calculated in hours in order to prevent staff on these shifts receiving greater or less than colleagues on standard shifts.
• No you do not, but it means that you do not need to deduct any hours off your annual leave entitlement card as you have not needed to use any in that week.
• If an employee is sick during planned annual leave and wishes to retain their pre-booked annual leave then they must notify the line manager (nominated deputy) on the first day of their sickness absence. The sickness absence must be recorded. The employee must submit the documentation required under the certification section at 3.1.2 of the attendance management policy.
• Employee’s will continue to accrue annual leave whilst absence. This excludes Bank Holidays.
• If employees have been off long term sickness absence and are unable to take their annual leave by the end of the annual leave year they will be able to carry over the remainder of the entitlement based on a calculation of the statutory amount of 20 days (pro-rata for part-time workers).
•  If an employee wishes to benefit from taking a holiday whilst off sick, the line manager (nominated deputy) needs to ensure this is recorded appropriately. Therefore, employees may request annual leave to go on holiday whilst on sickness absence from work and the appropriate payment will be made. Employees must inform their line manager (nominated deputy) of their intentions and seek agreement as soon as possible. Not doing so may result in annual leave not being authorised.
• If during a period of annual leave an employee is sick and wishes to reclaim planned annual leave for use at another time then this will require a medical fit note provided by the employees GP at the time of the illness, e.g. where an employee who has annual leave booked to go abroad or holiday in the UK and reports to be sick, where they have been able to take this holiday they will not be able to reclaim this. If they have been prevented from taking this holiday due to their sickness they will be able to reclaim this leave but will need to provide proof of cancellation and a medical certificate (GP fit note).
• The line manager will need to complete a “return to work” interview as soon as possible after the employee returns to work.
• If the employee did not tell their line manager that they were sick during annual leave until they return to work, the line manager can still reclassify this as sick leave if the employee can provide the appropriate medical certification.
• Yes, their annual leave should be calculated on months worked in the year.
• If a member of staff is off using unpaid leave for over a month they would not accrue annual leave for that month.
• If the unpaid leave is bought through the Flexible Futures scheme, the annual entitlement for the full year would apply.

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Frequently Asked Questions

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How to book annual leave.

You’ll build up paid annual leave from your first shift and for every hour you work.

To book leave and check how many hours you have, log onto our holiday booking system, or access it directly from  My:Bank .

Tip: your login and password details for the holiday booking system are the same as your My:Bank login details.

We’ve created a step-by-step user guide  for annual leave but here are some key points to remember:

• Your annual leave year starts from the date of your first shift, not the date you joined the Bank. For example, if you joined the Bank on 3 January 2021 but booked your first shift on 3 February 2021, your annual leave year will run from 3 February 2021 to 2 February 2022
• You can’t book annual leave and a working shift at the same time. But if you change your mind and decide to work a shift, you can cancel your holiday booking and rebook to a more suitable time
• When you book leave, the booking system will automatically authorise and release your timesheet for payment and you’ll be paid in the same way as normal bank shifts
• Your paid hours do not include lunch or tea breaks and they are limited to 37.5 hours per week
• You can claim annual leave once you’ve worked a minimum of one shift per week over a 12-week period
• You can’t roll over unclaimed annual leave into the next year, so make sure book all your leave before it expires at the year end. Use it or lose it!

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• Annual leave

I want to..

Book, submit or withdraw annual leave.

Annual leave booking is via the EASY system. The following guides will help you understand your annual leave record. How to book/request, submit, amend or withdraw your leave request and view the calendar. 

• EASY Annual Leave – guidance
• Nextra - Guidance
• Quick guide – request annual leave
• Quick guide – your annual leave record

Authorise, amend or delete annual leave

Annual leave under the Taken Annual Leave section is classed as an absence. Amending or deleting taken leave is done via the Absence screen

The guides will help you to amend, reject, authorise or delete annual leave requests. 

• Quick guide – approving annual leave
• Quick Guide - Deleting or amending absences

For employees off sick who have inclusive Bank Holiday hours, the  Scenarios for inclusive annual leave details actions to take when Bank Holidays are booked as annual leave.

Calculate my Annual leave Entitlement 

Annual Leave calculations are in hours for all employees except employees on Medical Terms and Conditions. For advice or queries on Medical Annual Leave contact  HR Direct.

Use the  Annual Leave calculator to calculate your entitlement (including or excluding bank holidays).

Request to buy or sell leave

For details refer to the relevant page  Buying Annual Leave page  or  Selling Annual Leave page . 

Request annual leave carry forward

Carry-forward of annual leave is in agreement with, and approval by your Manager. The video will show you how to carry over leave to subsequent leave years.

Report on an individual employee's or my team's annual leave 

The  EASY report overview - guidance takes you through the process of running, opening and saving reports. The  EASY Annual leave reports - guidance details the type of reports available.  For more information about reporting via the Nextra system visit the Donor Session Information page .

Record Annual Leave for an employee who is on long term sickness

For annual during a long term sickness period use the  Annual Leave During Sickness Form

Download a copy of the Annual leave card template

Although annual leave is requested and approved through EASY or Nextra. You can still use the  Annual Leave Card Template keep a personal record of your annual leave.

Access the policy relating to Annual Leave

Annual leave details are contained in our Time off Work policy. You can find the policy and related information on our  Time off Work policy page

• Buy Annual Leave
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• Sell Annual leave
• Sickness Absence
• Attendance Case Management support
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Accrual of statutory annual leave and sickness

5 November 2019

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There have been a number of high-profiles decisions on the relationship between holiday rights and sickness in recent years. Read key points from legal cases below.

HMRC v Stringer

In 2009 the European Court of Justice (ECJ) held that workers on sick leave continue to accrue annual leave and that if workers are not given the opportunity to take annual leave during this time, they should be permitted to carry it over to the next leave year. When the case was remitted to the House of Lords it was confirmed that holiday could be taken whilst a worker is on sick leave.

Pereda v Madrid Movilidad SA

The ECJ found that the European Working Time Directive (EWTD) requires that where a worker is unable to take pre-arranged statutory annual leave in the relevant leave year due to sickness absence before the leave commences, the worker should have the option to designate a different period for the annual leave even if this requires carry over.

Asociacion Nacional de Grandes Empresas de Distribucion (ANGED) v Federation de Asociaciones Sindicales (FASGA) and others

The ECJ confirmed that where a worker becomes sick during statutory annual leave (as opposed to before statutory annual leave as was the case in Pereda), the worker should be entitled to take the annual leave at a later date, even if this requires carry over.

NHS Leeds v Larner

The Court of Appeal (CA) made a decision on the issue of whether workers need to request to take leave before the entitlement to leave/payment arises. The CA decided that such a request is not required under the Working Time Regulations (WTR) where the worker is unable (or unwilling) to take annual leave because of sickness (see Q&A below).

KHS AG v Schulte C

On a separate issue, the ECJ has also given its decision in the case of KHS AG v Schulte C. The case looked at the question of whether there is a limit to the length of time an employee on long term sick leave can continue to carry forward untaken annual leave. The ECJ held that the EWTD does not require unlimited carry over and that a backstop of 15 months was permissible. However, this case was about a German collective agreement so it is not clear whether it will be followed here.

Sood Enterprises v Healy

Most recently of all the Employment Appeals Tribunal (EAT) has held that the amount of annual leave which may be carried over to a new leave year is four weeks (the entitlement under the EWTD). The EAT confirmed that, in the absence of a "relevant agreement" under reg.13A (7) of the WTR, the additional 1.6 weeks' annual leave under regulation 13A of the WTR does not carry over. In effect this means that a full time worker can only carry over 20 days not 28 days.

Working Time Regulations

The government is currently reviewing the WTR so we anticipate there will be future changes in any event. We will update employers as soon as more details are known.

Guidance from the Department for Business, Innovation and Skills

The Department of Business, Innovations and Skills (BIS) has published guidance on the relationship between sick leave and paid statutory annual leave which broadly reflects the outcome of the cases outlined above.

FAQs for employers

1. What did the European Court of Justice and the House of Lords in Stringer say regarding sickness absence and annual leave?

The case provided some clarity in this area and later cases, particularly Larner and Healy have clarified some unanswered questions. In a nutshell the Stringer case says that workers can accrue and take statutory annual leave under the WTR during sick leave. Workers who are denied holiday pay can bring a claim under the WTR or as an unauthorised deduction from wages claim, which has a more generous time limit.

2. Can annual leave be carried over from one year to the next?

Yes, if a worker on sick leave has not had the opportunity to take their minimum holiday entitlement (provided for by the WTR) in the current leave year, they are able to carry forward into the next leave year any untaken amount of this 20-day entitlement.

The Healy case confirmed that the amount of leave that should be carried forward to a new leave year is limited to 20 days (for a full time worker) under regulation 13 rather than 28 days under regulations 13 and 13A of the WTR.

3. Does this mean that any member of staff absent for any length of time can carry forward their untaken annual leave into a new holiday year?

Only if an individual has been unable to take their holiday entitlement because of sickness absence.

The Stringer case was specifically concerned with workers who had been absent for an entire holiday year. Employers should therefore allow workers in such circumstances to carry forward into the new leave year 20 days statutory annual leave entitlement.

However, if an individual is able to take their outstanding annual leave on their return to work before the holiday year expires, they should do so. If they choose not to this holiday will be lost and cannot be carried over. (We are advised that this is still the case, despite the recent decision in Larner.) If, however, there is insufficient time left in the leave year to enable them to take their accrued annual leave, they should be allowed to carry this leave forward into the new leave year.

4. What if the worker's employment has ended?

If, but only if, a worker’s employment ends before having had the opportunity to take their annual leave entitlement due to sickness, the worker is entitled to a payment in lieu at the normal rate of pay (see also 6 and 8 below).

5. Does the worker need to request to take leave before the entitlement to leave/payment in lieu of leave arises?

If the worker is sick for the complete leave year or where they return to work but there is insufficient time left in the leave year to enable them to take their accrued leave:

• they must be allowed to take it at another time, if necessary by carry over into the next leave year; and
• payment in lieu of accrued but untaken leave on termination must include payment for untaken leave which has been carried over (see question 6 below);
• this applies regardless of whether the worker made a request for leave (or to carry over untaken leave).

If the worker had the opportunity to take their holiday after recovery, we remain of the view that the worker should request and take holiday before the expiry of the leave year. If they choose not to do so, this holiday will be lost and cannot be carried over or compensated for on termination.

6. Is there a limit to the length of time an employee on long-term sick leave can continue to carry forward untaken annual leave?

The ECJ Schulte case suggests there is a backstop of 15 months in which to take the carried over holiday. So, all holiday not taken within 15 months of the end of the relevant leave year could be lost. This case may be applicable in the UK but until it has been considered by the UK courts we will not have certainty.

The Government is currently consulting on this issue and so amendments may be made to the WTR to deal with this point.

7. Can an employer require a worker to take accrued annual leave whilst they are on sick leave or as part of a phased return?

If a worker wishes to take WTR annual leave whilst on sick leave or as part of a phased return, employers should allow them to do so. Indeed, some employers may wish to encourage workers to take leave as if workers take a notional period of paid annual leave before the expiry of the current leave year there will be no issue in relation to carry over. However, we recognise some employers will prefer not to take this approach. What now appears to be clear, following the Pereda and ANGED decisions, is that employers cannot insist that a worker takes annual leave whilst they are on sick leave, if they do not wish to do so. This was also confirmed in Larner.

8. On termination of employment how far back should employers go in terms of calculating payment in lieu of accrued but untaken leave?

The workers in the Stringer case were claiming pay in lieu of holiday accrued in the holiday leave year during which their employment was terminated. The implication from the decision, however, is that there is a risk workers may be able to take all holiday accrued, or be paid on termination for holiday accrued going back a number of years. The worker could claim accrued holiday pay under UK law for at least the last six years.

However, a number of matters may limit a worker’s ability to make an employment tribunal claim relating to that leave. For example, the 15 month backstop in Schulte (see question 6 above). It is certainly open to NHS organisations (as public sector organisations to whom the EWTD is directly applicable) to argue that the carry over of annual leave should be limited to a 15 month period with the understanding that this may well be challenged by the worker as we do not have a UK decision on this point.

Also, the worker may be out of time to make such a claim. Larner made it clear that NHS workers can make a claim under the EWTD. That could mean NHS workers are able to back date their claims more than 6 years, possibly going back to 1998 when the WTR were introduced in the UK. However, we are advised that such a claim is unlikely to succeed for various reasons. A claim under the EWTD is more complex, employers may wish to take specific legal advice if faced with such a claim.

9. How much holidays will workers accrue per year whilst on sick leave?

For each full annual leave year from 1 April 2009 onwards, workers will accrue 5.6 weeks of annual leave. The decisions referred to throughout this guidance only relate to WTR annual leave, not the contractual annual leave provided for under the national agreements.

However, following the Healy case, in the absence of a relevant agreement whereby the additional 1.6 weeks shall carry over, accrued holiday for previous leave years may be limited to 20 days (including public holidays) under regulation 13 of the WTR.

We recommend that annual leave and sick leave policies make clear that only statutory holiday accrues during periods of sickness absence.

10. If a worker falls sick before or during their pre-arranged statutory holiday - can they cancel that holiday and take it a later date?

Yes, the decisions in Pereda and ANGED made it clear that a worker who becomes "unfit for work" before or during a pre-arranged statutory holiday has the right to reschedule the affected holiday for a later date. Moreover, if there is insufficient time left in the leave year to enable them to take this leave, they should be allowed to carry this leave forward into the new leave year.

11. If the worker falls ill during their pre-arranged statutory holiday, are they entitled to reschedule the full leave period (including the days on which the worker was healthy)?

No, the worker can only reschedule the period of planned leave which coincides with the unfitness for work.

12. Can an employer ask the worker to prove that they have fallen ill during annual leave before allowing the worker to reschedule the affected holiday?

Yes, we consider that an employer is entitled to ask for medical evidence of unfitness for work (over and above self-certification) if sickness occurs during a holiday. As it is an unusual situation, employers should make clear this applies regardless of how long the sickness lasts. We consider employers can also require workers to report sickness to their manager on the first day they become unfit for work.

13. Should employers change their policies on holiday and sick leave in light of Stringer and Pereda?

Given the various cases, we think it would be wise to look at annual leave policies on the subject of sickness during annual leave, carry over leave and taking leave where a worker has been absent for part of a leave year. There are no proposed amendments to national terms and conditions. To minimise the risk of any challenge, employers need to be able to show that they have taken a reasonable and consistent approach to the various issues around sickness and annual leave set out in this note.

14. What is the effective date of these changes?

Legally, the case law will probably be taken as stating the law as it has always been since the WTR were introduced in 1998.

15. You refer to 'workers' throughout. Why?

The WTR apply to workers which is a wider definition than that for employees, for example it covers bank staff.

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