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Can you carry over holiday pay when off sick?

on Thursday, 10 September 2015.

The Employment Appeal Tribunal (EAT) has held that, in order to carry over unused statutory holiday in to the next leave year, workers on sick leave are not required to prove they were unable to take holiday due to their medical condition ...

... merely being on sick leave is sufficient. In addition, the EAT held that the right to carry over holiday is not unlimited.

In Plumb v Duncan Print Group Limited, Mr Plumb worked as a printer for Duncan Print Group Limited (Duncan Print). Following an accident, he took four years' sick leave from April 2010 to February 2014. On termination of his employment, Mr Plumb requested payment for his accrued annual leave from 2010. Duncan Print determined that Mr Plumb's entitlement was limited to the current leave year only (2013/2014) and paid him accordingly.

Mr Plumb commenced proceedings for payment of the remaining untaken leave. In dismissing the claim, the Employment Tribunal held that, in the absence of any medical evidence showing he was physically unable to take the leave, the accrued leave in the previous leave years could not be carried over.

On appeal to the EAT Mr Plumb argued that sick workers should not be required to show inability to take leave in order to carry it over to the next leave year, and that there is no limit under UK law on the period for which leave can be carried over. Taking into consideration European law, the EAT held workers on sick leave should not be required to prove they are unable to take leave due to their medical condition in order to carry over that leave, the fact they are on sick leave is sufficient.

Whilst this is the case, the EAT also held that annual leave cannot be carried over indefinitely, it should be limited to 18 months from the end of the leave year in which the leave accrued and domestic legislation should be interpreted as such. As a result, the EAT found Mr Plumb to be entitled to payment in lieu of accrued unused statutory leave for the leave year 2012/2013 but not 2010 and 2011.

Best Practice

Whilst both parties have been granted leave to appeal, subject to that, this decision clarifies that leave accrued during sickness absence cannot be carried over indefinitely.

This case highlights the need for clear employment documentation, limiting the accrual to statutory entitlement only thereby avoiding the argument that accrual should also apply to contractual leave. This limitation is important not only during sickness absence but also during maternity, paternity and other types of family leave as well as on termination of employment.

The duration of Mr Plumb's absence in this case is extreme. Nevertheless, schools more often than not offer generous sick pay provisions; sickness absence of an academic year is not unheard of. The need for effective absence management, including early intervention is key to reducing associated costs and avoiding successful litigation.

For more information, please contact Naseem Nabi in our Employment Law team on 0117 314 5630.

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