Holiday Pay – carrying over when sick

14 July, 2015
by: Cripps Pemberton Greenish

The Employment Appeal Tribunal (EAT) has clarified 2 issues affecting workers on sick leave and their entitlement to annual leave.

The issues in question were as follows:

  1. Is a worker on sick leave required to establish that he/she was unable to take holiday (because of his/her health) in order that it may be carried forward to another leave year?
  2. Or, may the worker (whilst on sick leave) simply choose not to take holiday during this time? 
  3. Lastly, where an employee is on long term sick leave, can this holiday be carried forward indefinitely?

These issues were considered by the EAT in the recent case of Plumb v Duncan Print Group Ltd. In this case, the claimant had been on long term sick leave from 26 April 2010 to 10 February 2014, when his employment came to an end.

The claimant did not take holiday during the period 26 April 2010 to 31 January 2013. He claimed payment in lieu of this untaken holiday on the termination of his employment.

The EAT held that an employee on long term sick leave can carry forward untaken leave to a later holiday year. This will be the case whether they were unable to take the leave during the relevant year, or where they simply chose not to take it.

That being said, the EAT went on to find that this right to carry forward accrued untaken holiday should not be without limit. It was held that accrued untaken holiday in these circumstances must be taken within the period of 18 months from the end of the leave year in which the holiday accrued.

The claimant’s appeal was therefore allowed in part. As such, the claimant was entitled to a payment in lieu of accrued untaken holiday in respect of the leave years 2012/13, 2013/14 and 2014/15, but not in respect of the leave years 2010/2011 or 2011/2012.

The EAT granted both parties permission to appeal to the Court of Appeal, though it remains to be seen whether either party will do so.

Finally, it is important to note that this case only concerned and extends to the 4 weeks’ leave under Regulation 13 of the Working Times Regulations 1998 (WTR). It does not apply in respect of the additional 1.6 weeks’ leave pursuant to Regulation 13A of WTR.