The Employment Appeal Tribunal (‘EAT’) in Plumb v Duncan Print Group Limited has held that an employee’s right to carry over holiday when on sick leave is limited to 18 months from the leave year in which it accrued. The EAT also held that the employee does not have to demonstrate that he was unable to take holiday due to his illness in order for it to be carried forward.
Mr Plumb, a printer, was employed by DPG Ltd until February 2014. He had been on sick leave since April 2010 due to an accident. Mr Plumb had not taken or asked for annual leave until July 2013 when he wrote to his employer asking to take the leave that he had not taken since 2010. Following Mr Plumb’s dismissal he brought a claim for payment in lieu of the annual leave.
The Tribunal decided that the key issue was whether Mr Plumb was unable to take his leave in those years due to his medical condition and held that there was not sufficient evidence that he was ‘unable’ to take leave.
The EAT overturned this finding. The EAT held that an employee who is absent from work on sick leave is not required to demonstrate that they are physically unable to take annual leave by reason of their medical condition.
The EAT then considered the issue of whether any limitation ought to be placed on the right to carry over leave. Regulation 13(9) of the Working Time Regulations 1998 provides that annual leave must be taken in the year in which it is due with an exception for those on sick leave who are unable or unwilling to take annual leave during the leave year. It is understood that the exception need only go so far as required under the Working Time Directive. European case law indicates that the Directive requires at most 18 months of carry over therefore it was held that the limit of 18 months should be read into the Regulations. Accordingly Mr Plumb was entitled to payment in lieu of annual leave for the 2012/13 leave year but no earlier.
This decision strikes a balance between benefiting the employer and the employee:
1. It is now easier for employees to carry over holiday that they were unable to take when sick as they no longer have to prove that they could not take their holiday due to their illness.
2. Employer’s liability is now capped as employees can only carry over holiday when on sick leave for 18 months from the leave year in which it accrued.