Employees unable or unwilling to take their 4 weeks’ EU-derived statutory holiday because of sickness absence continuing to the end of the leave year can carry it forward, but must take it within 18 months of the end of the leave year in which it accrued.
Previous case law has established that workers off sick have a choice whether or not to take annual leave during sickness absence. If they choose not to, and do not return to work before the end of the leave year, EU law requires that UK regulations be read as permitting carry-over. The carry-over period does not have to be unlimited, but must be “substantially longer” than the leave year.
The Government has not yet amended the UK regulations to specify an appropriate limit on carry-over. The EAT has now filled this gap by ruling that the regulations be read constructively as permitting a worker to take annual leave within 18 months of the leave year in which it accrued in these circumstances.
The EAT also confirmed that an employee who is absent from work on sick leave continuing to the leave year end can simply choose not to take it and carry it over, and is not required to demonstrate that he is physically unable to take annual leave by reason of his medical condition. The lack of request to take holiday was enough to show that the employee was unwilling to take annual leave during his sickness absence and therefore to qualify for carry-over.
Permission to appeal to the Court of Appeal has been given to both parties. (Plumb v Duncan Print Group Ltd)