Sick Workers Can Carry Over Holiday for 18 Months
The Employment Appeal Tribunal has ruled that if a worker does not take their holiday because they are on sick leave, they can carry it over for 18 months from the end of the leave year in which it accrued. In addition, the worker does not need to show that they were unable to take leave due to sickness, just that they did not do so.
In Plumb v Duncan Print Group Ltd, Mr Plumb had an accident at work and remained off work sick from April 2010 until his employment terminated in February 2014. The holiday year ran from 1 February to 31 January each year. Mr Plumb did not ask to take any holiday whilst sick until September 2013, when he asked to take all his accrued holiday from 2010 onwards. His employer agreed to pay him for the current leave year (2013/2014) but refused to pay him for the previous three leave years.
Following the termination of his employment, Mr Plumb claimed payment in lieu of untaken holiday for the 2010/2011, 2011/2012 and 2012/2013 leave years.
The employment tribunal dismissed his claim. It considered that his medical condition had not prevented him from taking his holiday , his entitlement to that holiday therefore lapsed at the end of the relevant leave year and he was not entitled to payment in lieu on termination.
Mr Plumb appealed successfully to the Employment Appeal Tribunal (“EAT”). The EAT agreed with him that there is no need for sick workers to show that they are unable to take sick leave in order to be allowed to carry it over. It is sufficient that he was absent on sick leave and chose not to take his holiday. Mr Plumb was therefore entitled to use untaken leave at a later date, subject to any limitation on carrying over leave to later years.
The EAT went on to rule that Mr Plumb was not entitled to be paid in lieu of accrued but unused holiday for the 2010/2011 and 2011/2012 holiday years as he had lost the right to take that holiday. A worker who is unable or unwilling to take holiday because they are on sick leave can carry it over but must take it within 18 months of the end of the leave year in question. Otherwise their entitlement will lapse.
The employment tribunal’s decision that Mr Plumb was not entitled to carry over his untaken holiday because his medical condition did not prevent him from taking it is somewhat surprising. Case law on this issue has always referred to the worker being unable or unwilling to take holiday due to being on sick leave.
The EAT’s decision on the length of time holiday can be carried over is not that surprising. In KHS AG v Schulte, the ECJ ruled that the carry over period should be significantly longer than the leave year. The Advocate General suggested a period of 18 months in line with the International Labour Convention on holidays.
The parties have been given leave to appeal to the Court of Appeal. Subject to the outcome of that appeal, employment tribunals will now construe the Working Time Regulations 1998 so as to enable a sick worker to carry over unused holiday and take it within 18 months of the end of the leave year in question. Similar limitations will apply on the right to receive payment in lieu of untaken holiday on termination.
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