The courts and Tribunals are continuing to grapple with the issues around holiday pay and sickness. As we have covered in our previous articles, it is now well-established that workers continue to accrue annual leave during periods of sickness absence. However, if an employee is off on long-term absence the question then arises – how long can they continue to carry forward that leave into subsequent holiday years before losing it altogether?
This was the question posed in the recent case of Plumb v Duncan Print Group Limited (2015).
Mr Plumb had taken four years sickness absence as a result of an accident. When his employment was terminated due to his ill-health, he argued that he was entitled to receive payment for the holiday he had accrued during 2010, 2011 and 2012 – a total of 60 days’ pay.
The case went to the Employment Appeal Tribunal (EAT) who confirmed that it was not necessary for Mr Plumb to show that his ill health had prevented him from using his leave – the previous case law was clear that he was entitled to take it at a later date. The EAT did however confirm that the leave could not be carried forward indefinitely and confirmed that the Working Time Regulations should be interpreted as permitting workers to take annual leave within 18 months of the end of the leave year in which they accrued it. On that basis, the EAT found that Mr Plumb was entitled to payment for holiday accrued during 2012 but not 2010 and 2011.
It is important to point out that this case (along with many of the others in this area) applies only to the 4 weeks’ minimum leave from the Working Time Directive and not the additional 1.6 weeks’ leave given under the Working Time Regulations. This is because as we covered in our previous article here, the case of Sood Enterprises v Healy confirmed that the additional 1.6 weeks’ leave was not eligible to be carried forward. The same would apply to any additional contractual leave Mr Plumb may have been entitled to.
Many employers will welcome the idea of a clear ‘expiry date’ on leave, particularly in cases of long-term sickness absence. The result of course may be that employees are more likely to use their annual leave sooner during periods of sickness so as to avoid losing it altogether.
However, this is not likely to be the final word in the matter, as both parties have been given permission to appeal to the Court of Appeal. We will keep you updated on any future developments!
Are you grappling with an issue concerning holidays and sickness absence? Do you need to update your employment contracts or sickness absence policy? We can help – please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).