Accrual of statutory annual leave on long term sick leave 

Yes.  Workers who request to take annual leave under the WTR are entitled to have their request to take leave granted, subject to complying with any notification arrangements.  However, subject to a contrary agreement, an employer can choose not to allow a worker to take holiday on the particular days requested.  Provided the employer allows the worker to take the leave later during the leave year in question, there will be no breach of the WTR.

Yes, if a worker on sick leave has not had the opportunity to take their holiday (provided for by the WTR) in the current leave year, they are entitled to any untaken annual leave when they return to work, which might be in the next leave year.

Only if s/he 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.  Subject to 6 below, it appears that employers should therefore grant any requests from such workers to carry forward into the new leave year any of their statutory annual leave entitlement.
It is unclear what happens for sickness absences of less than a year.  Interpreting the Stringer and Pereda decisions, if a worker is able to take their outstanding annual leave on their return to work before the holiday year expires, they should do so.  If they chose not to do so this holiday will be lost and cannot be carried over.  If, however, there is insufficient time left in the leave year to enable them to take their accrued leave they should be allowed to carry this leave forward into the new leave year.

5. What if the worker’s employment has ended?
If but only if a worker’s employment ends before having had the opportunity to take the annual leave entitlement due to sickness, the worker is entitled to a payment in lieu at the normal rate of pay. 

This question remains unanswered.  In the circumstances it may be reasonable to take the approach that the entitlement to paid leave only arises if and when a worker makes such a request.  This is only treating all workers (whether at work or off sick) the same.  As such, if a worker has failed to request leave during the holiday year the leave is lost.  Unfortunately, until this has been considered again by the courts, this approach may be open to challenge.  Each employer should assess what liabilities they have in relation to long term sickness and decide on an approach that suits their needs.  Nevertheless, it is important to have a consistent approach. 

If a worker wishes to take WTR holiday 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 the clear, following the Pereda decision, 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.

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 they were 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 for at least the last six years and possibly since the implementation of the WTR in 1998.  That said, there are a number of matters which will limit a worker’s ability to make an employment tribunal claim relating to that leave.  The first is that they may be out of time to make such a claim.  As stated above, employers may also be able to argue that a worker is not entitled to be paid for accrued but untaken holiday relating to earlier holiday years if the worker did not make a request for leave in those years (as explained in 6. above).

5.6 weeks from 1 April 2009 onwards.  The decisions only relates to WTR annual leave, not annual leave under Agenda for Change.  So holiday should be calculated on the basis of 5.6 weeks from 1 April 2009, 4.8 weeks between 1 October 2007 – 31 March 2009 and 4 weeks before 1 October 2007.

As many questions remain unanswered at this stage, it is probably unwise to amend existing policies unless they explicitly contradict the decision in Stringer.  There are no proposed amendments to national terms and conditions and there is no need to have a formal policy dealing with the relationship between annual leave and sickness absence.  Employers are best advised to deal with requests for holiday/payment / carry over as they arise but ensure they take a consistent approach by perhaps preparing some guidelines.  To minimise the risk of any challenge, employers need to be able to show that they have taken a reasonable and consistent approach considering the particular circumstances of each worker.

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

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