EAT decides unused holiday can be carried over for 18 months
Thursday 30th July 2015
In Plumb v Duncan Print Group Ltd, the EAT has held that a worker cannot accrue holiday indefinitely on long term sickness absence. However, there is no requirement for that worker to show s/he was not able to take holiday in order to benefit from carry over.
Mr Plumb commenced employment with DPG in the 1990’s. He went on sick leave in April 2010 after an accident. He did not ask for or take holiday until July 2013, when he asked to take the holiday which had accrued during his absence. DPG refused in relation to the 2010, 2011 and 2012 holiday years. Mr Plumb’s employment was then terminated in February 2014 and he brought a claim for a payment in lieu of untaken holiday which had accrued since April 2010.
In the ET, the judge focussed on whether Mr Plumb had been able to take holiday. On the evidence, the judge decided that Mr Plumb could have taken holiday had he wanted to, so his claim failed. Mr Plumb appealed.
The EAT held that the judge had erred in law and that an employee on sick leave does not have to demonstrate that their medical condition prevents them from taking holiday. If they choose not to take holiday, that leave rolls over to the subsequent year.
However, the EAT then considered whether there should be a time limit on the right to carry over untaken holiday. The EAT rejected Mr Plumb’s argument that the right was unlimited in his case and read a requirement into the Working Time Regulations 1998 that untaken leave carried over during sick leave must be taken within 18 months of the end of the holiday year in which it was accrued. The EAT awarded Mr Plumb payment in lieu for the 2012/13 leave year, but not for any earlier period.
Permission to appeal to the Court of Appeal was granted.
The case dealt with Mr Plumb’s entitlement to 4 weeks of annual leave as derived from the Working Time Directive. Previous case law has held that the additional 1.6 weeks of UK leave does not carry over. However, employers should check to ensure that they have not reached an agreement to the contrary.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.