20 July 2015

Sickness and holiday pay - the latest guidance from the EAT


The Employment Appeal Tribunal case of Plumb v Duncan Print Group Ltd provides important guidance on how to deal with requests to take holiday that has accrued during periods of sickness absence – in particular, requests made after the end of the relevant holiday year.

The facts are straightforward. Mr Plumb was injured in an accident in April 2010. He remained on sick leave until his employment ended in February 2014. Mr Plumb did not request any holiday in 2010, 2011 or 2012.

In 2013, whilst still on sick leave, Mr Plumb requested to take accrued holiday from 2010, 2011 and 2012 (at that time, 60 days in total) plus some of his 2013 holiday. His employer only agreed to pay for holiday for 2013, the then current holiday year. Under its contractual terms, it did not normally allow holiday to be carried forward into future years, so in its view Mr Plumb had forfeited his 2010, 2011 and 2012 holiday entitlement (which he had never previously requested).

After Mr Plumb's employment ended in 2014, he brought a claim for, amongst other things, payment in lieu of untaken holiday from 2010, 2011 and 2012. He was unsuccessful in the Employment Tribunal, which relied on Mr Plumb not being able to demonstrate that he was medically unable, rather than unwilling, to take his holiday during the relevant leave years. However, the Employment Appeal Tribunal (EAT) overturned this decision.

The EAT decided that:
 

  • the Working Time Regulations (which provide a minimum annual leave) must be interpreted in accordance with the EU Directive on which they are based;
  • an employee is not required to take annual leave during sick leave, but may do so if he or she wishes;
  • if an employee on sick leave does not wish to take annual leave during that time, he or she may do so at a later date
  • the employee does not need to show that he or she was medically unable to take holiday whilst sick; and
  • the latest date by which such an employee must take the annual leave is “at most” 18 months after the end of the relevant leave year (irrespective of any company policy on not carrying leave forward, and irrespective of whether he or she was unable, or simply unwilling, to make the request when off sick);
  • such a time limit on carry forward reflects the aim of the holiday legislation, which is to ensure that employees are able to take a period of rest and relaxation for health and safety reasons. Allowing employees to carry their holiday forward for longer would not reflect this aim.

This meant Mr Plumb was entitled to be paid his 2012 (and 2013) holiday entitlement, but not his 2010 or 2011 entitlement. Mr Plumb only narrowly missed the 2011 entitlement because: the 2011 leave year ran from 1 Feb 2011 to 31 Jan 2012; therefore 18 months after the end of the leave year was 31 July 2013; and although he had requested the leave on 24 July 2013, he did not propose to take it until 5 August 2013, a few days too late.

The EAT's decision follows a number of other judicial decisions and provides helpful clarification on the English law position on the interplay between holiday and sickness rights – in particular, the 18 month time limit on carrying holiday forward and the irrelevance of the employee's reasons for not making a request to take holiday when sick. Having a time limit is a welcome measure for employers but, as the Plumb case demonstrates, it still means there is potential for employees who have been absent from the workplace for a long period (sometimes paid, sometimes not) to suddenly seek to take or be paid for a couple of years' holiday in one go.

The Plumb decision is not the end of the road on holiday and sickness:
 

  • the EAT acknowledges that this is an important issue and has given both parties permission to appeal to the Court of Appeal; and
  • we still do not have a clear judicial authority on the issue of carrying forward holiday when an employee has been absent on sick leave for only part of the holiday year. It is interesting that the EAT in the Plumb case highlighted the words “at most” when referring to the time limit of 18 months from the end of the leave year. It may well be that a shorter time limit is justified for shorter sickness absences but we await judicial clarification on this point.

For advice, or assistance with contracts and policies on sickness and holiday, please contact a member of the Withers Employment Group.

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