The claimant in Plumb v Duncan Print Group Limited was absent from work through sickness from early 2010 until his dismissal in 2014. He took paid annual leave in the 2013 holiday year, and also asked to be allowed to take holiday that had accrued from 2010 to 2012. The employer refused.
On termination of his employment the claimant brought a claim under the Working Time Regulations for payment in lieu of untaken annual leave for the 2010 to 2012 period. Although the Working Time Regulations say that leave must be taken in the leave year in which it accrues, this has already been overtaken by European case law in relation to leave untaken because of sickness absence and, unsurprisingly, the EAT confirmed that the claimant did not have to show that he was physically unable to take annual leave in order to be entitled to carry leave forward to another leave year. He could choose to take leave in the relevant leave year but could not be required to do so. If he opted not to take leave during a period of sickness absence he was entitled to take the leave at a later date.
However, the EAT went on to say that an employee on long term sick leave cannot carry holiday forward indefinitely from one leave year to the next. The European Working Time Directive and European case law do not require this; the Working Time Regulations only have to be read as permitting a worker who is unable or unwilling to take annual leave because of sick leave to take leave within 18 months of the end of the leave year in which it accrued.
This decision presumably also means that, on termination of employment, the employee's claim for payment in lieu of accrued but untaken holiday will be similarly limited.