The Employment Appeal Tribunal (EAT) has recently clarified that where an employee has untaken leave that they have been unable to use because of long term sickness there is to be an 18 month time limit to do so.  The 18 months starts from the end of the leave year in which it should have been taken.  Workers have been able to carry over four weeks leave if they have been on long term sick as decreed by HMRC v Stringer in 2009 and was linked to the Working Time Regulations 1998.  An employee’s contract may, however, provide for additional holiday carry over.

The decision to add the 18 month time frame was linked to Plumb v Duncan Print Group Ltd.  The EAT  stated the worker doesn’t need to show that they were physically “unable” by reason of sickness to take the holiday during the leave year in which they were off sick.  Although employees can take their holiday during a period of sickness some may choose not to.

Background to the Case

Mr Plumb had been on sick leave since April 2010 due to an accident at work.  He did not take his annual leave for 2010, 2011 and 2012 leave years.  In July 2013 he was asked to take all the annual leave that he had accrued. The employer only paid him his leave for the year in which he requested it ie 2013-14 and refused to pay the leave untaken from 2010, 2011 and 2012 which amounted to 60 days.  He remained on sick leave until his termination of employment in February 2014 and put in an employment tribunal claim.

The EAT decided that a worker should not be entitled to have their holiday carried forward indefinitely as defined by the Working Time Directive and EU case law.  Therefore workers who have been absent for a number of years will not be entitled to back pay for holiday that they have accrued and not taken.

In any case wherever possible I always advocate employers should deal with long term absence issues to prevent employees being off for months and certainly not years on end.