Carrying over holiday when sick

Does an employee on sick leave have to show he was unable, by reason of illness, to take holiday for it to be carried forward and is the right to carry holiday forward unlimited?

The Employment Appeal Tribunal (EAT) has held that the answers to both questions are no.

In the case of Plumb v Duncan Print Group Limited, Mr Plumb, a printer, took 4 years’ sick leave following an accident. Upon dismissal he sought payment for 60 days’ accrued holiday for 2010, 2011, 2012 and 2013. Mr Plumb gave evidence that his shoulder had been operated on on three occasions between 2010 and 2011 and that he was subsequently diagnosed as severely depressed but he continued to work at weekends and took a week’s holiday in 2012 in the UK. In the absence of any medical evidence the tribunal came to the conclusion that Mr P was able to take his annual leave during his leave years and subsequently  dismissed the claim.

On appeal the EAT overturned the finding. It held that a worker on sick leave can carry forward untaken leave into a new holiday year under the Working Time Regulations (WTR) even if the worker was capable of taking annual leave. It follows that the principle set out by the Court of Appeal in the case of NHS Leeds v Larner applies to those who are unwilling to take annual leave during sickness absence as much as those who are unable to do so. Since, in the present case, there is nothing to suggest that Mr Plumb sought to take annual leave while he was on sick leave, it had to be inferred that he did not wish to do so and so he was entitled to carry it over.

It should be noted however that the case before the EAT only concerned the four weeks’ leave granted by regulation 13 of the WTR, and not the additional leave under regulation 13A; in a previous case (Sood Enterprises Ltd v Healy) the EAT held that the principle of carrying forward leave due to sickness does not apply to that additional leave.

On timing, the EAT ruled that such leave cannot be carried forward indefinitely. European law only requires, at most, that employees on sick leave are able to take annual leave within a period of 18 months of the end of the leave year in respect of which the annual leave arose. Consequently the WTR are to be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it is accrued where the worker was unable or unwilling to take annual leave.

The EAT held that Mr Plumb was entitled to payment in lieu of annual leave for 2012/13 but not for 2010 and 2011. Permission to appeal to the Court of Appeal was granted to both parties.  It remains to be seen whether either party will, in fact, appeal.

Plumb v Duncan Print Group Limited, EAT, 8th July 2015

If you have any questions in relation to the points raised in this article, please contact our HR/Employment specialist on 01480 442040 or email claire.berry@leedsday.co.uk.


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