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Carrying over holiday pay when sick

Plumb v Duncan Print Group Limited

The Employment Appeal Tribunal (“EAT”) held in this case that an employee on sick leave is not obligated to show he was unable, by reason of illness, to take holiday for it to be carried forward. However the EAT also made it clear that the right to carry forward is not without it limits.

Mr Plumb, a printer, suffered an accident which left him unable to work for four years. Upon dismissal, he sought payment for 60 days' accrued holiday for 2010, 2011 and 2012. Mr Plumb’s claim was dismissed by the Employment Tribunal because they held that he was unable to show that the reason he did not take his leave was due to his medical condition.

On appeal the EAT overturned this decision. The EAT confirmed that Article 7 of the Directive does not necessitate a sick employee to take annual leave during the leave year or to show that they were unable by reason of sickness to take the leave: they may be unable or unwilling to take it and are therefore entitled to take it at a later date.

The EAT did however rule that the right to carry forward accrued holiday is not unlimited. The EAT held that the wording of the Directive and case law was clear, national law is not required to allow carry forward without limit and therefore, when considering the Working Time Regulations 1998, it must be interpreted as permitting a worker to take annual leave within 18 months of the end of the leave year in which it accrued.

The EAT ultimately decided that Mr Plumb was entitled to payment in lieu of annual leave for 2012 but not for 2010 and 2011.

In Practice

Paul Burton, Employment Associate says, "This case follows on from the large amount of case law we have had in the last few years regarding holiday pay. It clarifies one of the remaining grey areas involving holiday and sickness. It is now clear that workers on sick leave are not required to actively request holiday while they are off sick." However, there is some consolation for employers, in that there is a limit to how long a worker can claim accrued holiday while off sick. Many had feared that workers would be able to claim for years going back, but now it has been established they can only claim for approximately 18 months.

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.

The content of this article, blog or video is not intended as specific legal advice. For tailored assistance, please contact a member of our team.

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