Springhouse Solicitors

Is a sick worker, who has been absent for several years, entitled to be paid in lieu of unused leave when his employment ends?

Yes, said the Employment Appeal Tribunal (‘EAT’) in the case of Plumb v Duncan Print Group Ltd.

Background

Mr Plumb, a printer, was on sick leave for a period of almost 4 years following an accident at work. After his employment ended, Mr Plumb brought a claim for payment in lieu of 60 days’ untaken leave for 2010, 2011 and 2012.

The Employment Tribunal dismissed Mr Plumb’s claim because he could not show that he was unable to request leave due to his medical condition. Therefore, the Tribunal said that Mr Plumb’s accrued leave for the 3 holiday years was not carried-over and had lapsed.

On appeal, Mr Plumb successfully argued that sick workers were not required to show that they could not take annual leave in order to be entitled to carried-over leave. The EAT said that it was inconsistent to compel a worker absent on sick leave to take annual leave at the same time. In addition, as there was nothing laid down in law to suggest that a worker must be able to demonstrate that they are physically unable to take annual leave in order to benefit from carried over leave, Mr Plumb was entitled to take that leave at a later date, subject to any limitation on carrying over leave to later years.

The EAT did however rule that leave could not be carried forward indefinitely, and that leave had to be taken within 18 months of the end of the year to which it relates, if a worker were unable or unwilling to take it because they were sick.

Mr Plumb’s appeal was therefore allowed in respect of his 2012 leave, but it was dismissed for the previous two holiday years. Permission has been granted to the Court of Appeal.

Implications

This decision clarifies the circumstances in which sick workers may be entitled to carry over accrued and untaken statutory holiday. Sick workers do not need to provide evidence that they were physically unable to take holiday and if they do not take or request holiday during sick leave, it is to be assumed that they are unable or unwilling to take it and accordingly, that leave may be carried over to a subsequent holiday year.

This case also confirms, subject to further appeal, that leave can only be carried over for 18 months from the end of the leave year and any accrued leave which goes beyond that cut-off period will lapse.