Generally annual leave cannot be carried over to the next holiday year unless there is an agreement to do so or the employee is on sick leave. In Plumb v Duncan Print Group Ltd, the Employment Appeal Tribunal (EAT) held that workers who are off sick do not have to show that they were unable or unwilling to take the leave because of their medical condition, and that it can be taken up to 18 months after the leave year in which it accrued.
Thompsons was instructed by Mr Plumb’s union, Unite the Union, to act on his behalf.
Basic facts
After suffering an accident at work in April 2010, Mr Plumb remained on sick leave until he was dismissed in February 2014. He did not ask to take any holiday until 2013, when his employer paid him for that leave year.
On termination, he asked his employer to pay him in lieu of annual leave for the 2010, 2011 and 2012 leave years but the company refused.
Tribunal decision
The tribunal noted that the guiding case was the decision of the Court of Appeal in NHS Leeds v Larner (weekly LELR 285) when it held that people on sick leave can carry over their leave with pay, but only if they were either “unable or unwilling” to request leave as a result of their medical condition. This, said the tribunal, was a question of fact, not law.
In this case, the issue in question was whether Mr Plumb was “unable” to take the leave. The tribunal decided he was able to do so, not least because he regularly worked weekends during the time he was off sick and also because he went on a week’s holiday in 2012. Further the question of his “willingness” to take annual leave was irrelevant.
Mr Plumb appealed, arguing that the law did not require him to show that he was physically unable to take holiday because of his medical condition.
EAT decision
The EAT disagreed with the tribunal, holding that the correct legal situation is as follows:
- If the employee is not allowed to take annual leave during a period of sick leave that coincides with a holiday year, they are entitled to take it in a subsequent leave year
- If the employee is allowed to take annual leave while on sick leave, they can either take the holiday during the period of sick leave or at a later date
- The Court in Larner did not require employees on sick leave to show that they were unwilling or physically unable to take annual leave because of their medical condition.
As Mr Plumb did not request any annual leave whilst he was on sick leave from 2010 to 2012, the only inference that could be drawn was that he did not want to take his annual leave during those years. He remained entitled to the leave, therefore, and was allowed to carry it over until a later date.
The EAT then addressed the question of whether there was a time limit on the period in which annual leave can be carried over. Although Regulation 13(9) of the Working Time Regulations states that annual leave must be taken “in the leave year in respect of which it is due”, it has been interpreted to include an exception for people on sick leave who are unable or unwilling to take annual leave during the leave year.
However, this exception only has to be read into the regulation to the extent necessary to give effect to the Working Time Directive. As the UK does not set a limit for annual leave entitlement in sickness absence cases, the EAT held that it could be guided by the relevant International Labour Organisation convention which indicates that the carry over period should be limited to 18 months from the end of the leave year in which is accrued.
In the present case, therefore, Mr Plumb was entitled to compensation for the leave year 1 February 2012 to 31 January 2013. He was also awarded repayment of his EAT fees.