In Plumb -v- Duncan Print Group Ltd 2015 the EAT held that, under the Working Time Directive 2003 (“WTD”), a worker is not required to prove an inability to take annual leave whilst on sick leave in order to carry leave over to the next leave year and that carried over leave must be taken within 18 months of the end of the holiday year in which it accrues. Leave to appeal to the Court of Appeal has been granted.
Mr Plumb was employed by Duncan Print Group Ltd as a printer. From April 2010 until February 2014 when his employment terminated, he was on sick leave as a result of an accident. Mr Plumb did not take or request any holiday over the period April 2010 to September 2013. He then requested permission to take all of his accrued annual leave over the previous three years. His employers agreed to pay for accrued holiday for the 2013/2014 holiday year but refused to pay for unused holiday for the 2010/2011, 2011/2012 and 2012/2013 leave years. Following termination of his employment, Mr Plumb brought a claim seeking payment in lieu of his untaken annual leave for these years.
Applying the decision in NHS Leeds -v- Larner  EWCA Civ 1034, the Employment Tribunal dismissed the claim on the grounds that Mr Plumb could not show he was ‘unable’ to take his annual leave during his period of sick leave.
On appeal, the EAT considered two issues:
- Is an employee on sick leave required to establish that he was unable to take annual leave whilst on sick leave or is choosing not to take sick leave sufficient? and
- Is there a limitation period on carry over of accrued leave?
The EAT found that the Tribunal had incorrectly concluded that Mr Plumb was required to show that he was unable to take annual leave whilst on sick leave. It confirmed that annual leave and sick leave serve different purposes; annual leave allows a worker to rest/recuperate whereas sick leave facilitates recovery from illness. It would be inconsistent with the underlying purposes of these rights to compel a worker absent on sick leave to take annual leave whilst they are off sick unless they choose to do so. The fact that a sick worker is unwilling to take holiday during sick leave is sufficient. In this particular instance, unwillingness was inferred by a lack of requests to take annual leave in the relevant years.
The second question was considered in light of EU law, which, by virtue of Recital 9 of the WTD includes the International Labour Organisation principles (“ILO”). The ILO states that unused holiday must be used within 18 months of the year end in which it accrues. The EAT held that the WTD does not require national law to permit unused leave to be carried over indefinitely. The purpose of annual leave is to ensure the health and safety of workers and it ceases to have this purpose when it goes beyond a certain time limit. By interpreting the WTD in light of the ILO principles, the EAT held that any unused holiday must be used within 18 months of the end of the leave year to which it relates.
Hence, Mr Plumb was entitled to be paid in lieu of accrued holiday for the 2012/2013 holiday year but lost his claim for payment in respect of the two earlier years. The EAT held that Regulation 13(9)(a) (as previously re-drafted in Larner) should be further amended to read as follows:
“leave to which a worker is entitled under this regulation may be taken in instalments but – (a) it may only be taken in the leave year in respect of which it is due, save that it may be taken within 18 months of the end of that year where the worker was unable or unwilling to take it because he was on sick leave and as a consequence did not exercise his right to annual leave”.
In view of the importance of the issues in this case, the EAT gave the parties leave to appeal to the Court of Appeal.