The Employment Appeal Tribunal (Underhill P sitting with members) has held in Fraser v Southwest London St.Georges Mental Health Trust (2011) UKEAT/0456/10/DA that an employee seeking unpaid statutory holiday pay is required to give notice of their intention to take annual leave during the year in question in order to be paid the unpaid holiday pay.
This is a detailed Judgment, which considers a number of the previous authorities in this area. It is worth reading in full via the link available above. I suspect that given the importance of the issue, the case may fall to be considered by the Court of Appeal.
The Judgment appears to contradict the Judgment of Bean J in NHS Leeds v Larner (2011) UKEAT/0088/11/CEA which held that it was not necessary for an employee to submit a request in the leave year in order to be compensated for untaken annual leave at the end of their employment. I have heard on twitter via the #ukemplaw hashtag that Larner is also proceeding to the Court of Appeal.
There is a small distinction between the points being looked at in the two cases, with Larner appearing to consider the issue of whether a request is necessary within the leave year whereas Fraser looks at the wider question of whether a request is required at all. However, it can be fairly said that we now have a situation whereby two authorities contradict each other.
Larner was decided in June 2011 with the hearing in Fraser taking place in July 2011 and Judgment being handed down in November 2011. It does not appear that Underhill P’s attention was drawn to the previous Judgment in Larner, hence it is not referred to in the Judgment.
Until the Court of Appeal resolves the issue, parties will need to argue their respective positions at first instance. I emphasise again that those looking at this point will need to read both authorities in full. The position of the law is such that I would suggest that professional representatives will be obliged to highlight both authorities to the Tribunal and attempt to distinguish the authority that is not in their favour. If the claim is of sufficient value, protective appeals will need to be lodged by the unsuccessful party in order to protect their position pending determination by the Court of Appeal.