This is a question which seems to cause some confusion between employers and employees alike.
In the recent case of Plumb v Duncan Print Group Limited the Employment Appeal Tribunal (EAT) were asked to consider just that.
Mr Plumb took four years’ sick leave following an accident at work. Upon dismissal, he sought payment for 3 years holiday entitlement. The Employment Tribunal dismissed the claim on the basis that Mr Plumb failed to establish that he was unable to take his holiday because of his medical condition and was able to continue working in another weekend job. It should be noted that this case only concerned the 4 weeks’ leave granted by Regulation 13 of the Working Time Regulations 1998 and did not concern additional leave under Regulation 13A.
The EAT was asked to consider if an employee on sick leave needed to establish that their sickness prevented them from taking their holiday and if there is a limitation period for which unused annual leave can be carried over?
On the first issue, the EAT held that Article 7 of the Working Time Directive (WTR) does not require an employee on sickness leave to demonstrate that their sickness prevented them from taking their holiday. They could be unable or unwilling to take it and should still be entitled to carry this forward to a later date.
On the second issue, the EAT concluded that such leave cannot be carried forward indefinitely and should be limited to an 18 month period following the leave year in question. The wording of the WTR made it clear that there was no requirement for carry forward to be unlimited in duration.
This decision offers some valuable guidance to employers as to how they should treat holiday pay in situations where an employee has been on sickness absence for a significant period of time.
By Louise Addison – ProAktive Employment Adviser