Employment Appeal Tribunal Ruling

The Employment Appeal Tribunal (EAT) has clarified two issues affecting the rights of workers on long-term sick leave to carry forward untaken annual leave under the Working Time Regulations 1998 (WTR).

Mr Plumb claimed a payment in lieu of untaken leave when his employment came to an end after a long period of sickness absence.  His leave year ran from 1 February to 31 January each year.  His sickness absence began on 26 April 2010 and ended with the termination of his employment on 10 February 2014. During that period he did not take any annual leave.

The EAT ruled that Mr Plumb was entitled to a payment in lieu of leave that accrued in the 2012/13, 2013/14 and 2014/15 leave years but not the leave that accrued in the 2010/11 and 2011/12 leave years.

The EAT confirmed that a worker on sick leave can carry forward untaken leave into a new holiday year under the WTR even if the worker was capable of taking annual leave.  Therefore those who are unwilling to take annual leave during sickness absence as well as those who are unable to do so can carry over holiday.  This applies to the four weeks’ leave granted by regulation 13 of the WTR, and not the additional leave under regulation 13A.

The EAT confirmed that such untaken leave cannot be carried forward indefinitely.  European law only requires, at most, that employees on sick leave are able to take annual leave within a period of 18 months of the end of the leave year in respect of which the annual leave arose. The WTR permit a worker to take annual leave within 18 months of the end of the leave year in which it is accrued where the worker was unable or unwilling to take annual leave because he was on sick leave and as a result, did not exercise his right to annual leave.