The Employment Appeal Tribunal (EAT) has held that sick workers do not need to demonstrate an inability to take holiday in order to be entitled to carry such holiday over to the next holiday year.
The case of NHS Leeds v Larner established that a worker can only take holiday in the leave year in which it is due unless the worker was unable or unwilling to take it because he or she was on sick leave. However, the ECJ case of KHS AG v Schulte held that it is reasonable for national states to include a provision that accrued leave cannot be held over indefinitely and in this case a period of 15 months after the end of the leave year was considered appropriate.
What does this mean?
In this case, the EAT held that it is not necessary for workers on sick leave to demonstrate that they are physically unable to take holiday in order to carry it over to the next holiday year. If they don’t take or request holiday during their sick leave then it should be assumed that they are unable or unwilling to take it and the leave should be carried over to the next holiday year.
However, the right to carry over holiday is not unlimited. Taking into account the fact that the purpose of annual leave is to ensure the health and safety of workers, and the provisions of International Labour Convention 132 which deals with paid annual holiday, the EAT held that carried over holiday must be taken within 18 months of the end of the leave year in which it accrues. Accrued holiday that goes beyond this cutoff period will be lost. This is the case even though there is no national legislation or provision to this effect.
What should employers do?
Employers should allow workers who are absent due to long term sickness to carry forward annual leave for 18 months from the end of the leave year in which it accrues.
However, it should be noted that this case only concerned the four weeks’ holiday granted to workers under European law and not the additional leave granted in the UK under Regulation 13A of the Working Time Regulations 1998. Such additional leave is not eligible to be carried forward.
The parties in this case have been given leave to appeal to the Court of Appeal, so this may not be the last we hear on this subject.
Case reference: Plumb v Duncan Print Group Limited