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July 27th, 2012
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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