Sickness and Holiday Leave carry forward

In Plumb v Duncan Print Group Ltd, the EAT has looked at two issues relating the much vexed issue of sickness absence and holiday leave:

1. Does an employee have to prove they were prevented from taking their holiday due to their illness?; and
2. How long can leave be carried forward for before it is lost?

The latter point has been of particular interest to employers facing large holiday pay bills for long term sick employees.

On the first point the EAT decided that:

• An employee who is absent from work on sick leave is not required to demonstrate that he or she is physically unable to take annual leave by reason of his or her medical condition. – In this case, since there was nothing to suggest that the claimant sought to take annual leave while he was on sick leave, it had to be inferred that he did not wish to do so and so he was entitled to carry it over.

On the second point they said:

• Since the European case law indicates that the Directive requires at most 18 months of carry-over in such circumstances, that limit should be read into the UK laws.
• Therefore the Working Time Regulations in the UK need only be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it accrued where he or she was unable or unwilling to take annual leave because of sickness.

It should be noted that there were no separate contractual provisions dealing with this issue in this person’s contract.

If this decision stands (it is only an Employment Appeal Tribunal decision and could be subject to a higher court having a different view) it does now offer a helpful (for employers) limitation on accrued holiday pay claims but as with most things holiday pay related watch this space for the next exciting instalment.

This content is correct at time of publication