The EAT case of Plumb v Duncan Print Group Ltd UKEAT/2015/0071 focuses on a worker's right to holiday when they are absent due to sickness. The decision confirms that sick workers do not need to provide evidence that they were unable to take holiday for it to be carried forward and that leave can only be carried over for 18 months from the end of the leave year.

Facts

Mr Plumb was employed as a printer by Duncan Print Group Ltd (the Company). He was absent from work on sick leave following an accident on 26 April 2010. He remained on sick leave until his employment terminated on 10 February 2014.

The Company's leave year ran from 1 February to 31 January. The Employee Handbook provided that employees were not permitted to carry forward unused annual leave into the next leave year unless agreed in writing by the Company. In September 2013 Mr Plumb asked to take the annual leave that he had not taken since 2010. The Company paid annual leave for the leave year from 1 February 2013 but refused to pay annual leave for the leave years since 2010.

Following the termination of his employment, Mr Plumb brought a claim for payment in lieu of untaken annual leave for the 2010, 2011 and 2012 leave years.

Employment tribunal decision

The employment tribunal (ET) considered the case of NHS v Larner, where the Court of Appeal held that a worker who is on sick leave will be entitled to carry over their leave with pay if they were either unable or unwilling to request leave by reason of their medical condition. The ET considered that a key issue was whether Mr Plumb was unable to take his leave due to sickness.

The ET found that Mr Plumb had not produced documentary medical evidence that showed he was unable to take his annual leave. Reference was made to the case of KHS AG v Schulte, where the employee suffered a heart attack, and NHS v Larner, where the employee was presumed to have been too ill to exercise her right to annual leave.

Mr Plumb gave evidence at the ET that he had had three shoulder operations between 2010 and 2011 and he was subsequently diagnosed as severely depressed. The ET thought it was significant that Mr Plumb had worked for a different employer at weekends and had taken a week's holiday in 2012.

The ET concluded that Mr Plumb was able to take his annual leave during his leave years and dismissed his claim. Mr Plumb appealed to the EAT.

EAT decision

The Employment Appeal Tribunal (EAT) considered two issues:

  1. Is a worker on sick leave required to establish that he was not able to take annual leave by reason of his medical condition, or is it sufficient that he was absent on sick leave and did not choose to take annual leave when on sick leave?
  2. Is there any limitation on the period for which a worker may carry forward annual leave accrued in one year to later years?

The EAT held that workers on sick leave do not have to show that they are unable to take annual leave because of their medical condition. They may take leave if they choose or they may take it at a later date, which can be in the next holiday year. The ET was therefore wrong to conclude that Mr Plumb was not entitled to carry leave over into the next year because he could not show that his medical condition prevented him taking holiday.

However, the EAT also held that the right of workers to carry over holiday is limited.  Workers may carry forward leave for a further 18 months from the end of the leave year in which the leave arose. When Mr Plumb asked to take holiday in August 2013, the EAT held that he was only entitled to leave for the 2012 holiday year, as more than 18 months had passed since the end of the 2010 and 2011 holiday years.

Mr Plumb's appeal in respect of the 2012 holiday year was therefore allowed but the EAT dismissed his appeal in respect of the 2010 and 2011 holiday years. The EAT gave both parties permission to appeal to the Court of Appeal.

Comment

This decision means that workers on sick leave (especially paid sick leave) may choose to let their annual leave run into the next holiday year. Workers could therefore be entitled to take a long holiday when they return to work or, if they leave, to a significant payment for untaken leave.

However, this right will only last for 18 months from the end of the relevant holiday year so workers cannot accrue unlimited amounts of holiday.

Employers may consider updating their sickness absence policies so that workers are informed of their rights to annual leave when they are off sick. As the 18 month limit can affect holiday entitlement for workers on sick leave, it would be advisable to keep workers updated while they are on sick leave of their current holiday entitlement and when it expires.