The Employment Appeal Tribunal (EAT) has recently clarified the matter of what happens regarding annual leave accrued whilst absent due to sickness in Plumb v Duncan Print Group Ltd. The case emerged as a result of the claimant Mr Plum, seeking payment in lieu of untaken leave he had accrued whilst he was on long term sickness absence. Mr Plum’s sick leave began on 26 April 2010 and ended on the 10th February 2014 when his employment was terminated. Throughout the duration of his absence he do not take any annual leave. This case clearly highlights two fundamental questions that required clarification:
- Can an employee on long-term sickness carry forward any untaken accrued annual leave?
The EAT addressed this by confirming that under the Working Time Regulations 1998 (WTR), employees are able to carry forward any untaken annual leave, even if they were capable of taking it whilst absent from work due to illness. According to regulation 13 of the WTR 1998, employees are entitled to carry over four weeks leave and not any additional leave despite mention of this in regulation 13A WTR 1998. This upholds the previous decision held in Sood Enterprises Ltd v Healy whereby the EAT held that the ability to carry forward annual leave accrued does not apply to additional leave.
- Can the untaken leave be carried forward indefinitely?
In the decision EAT clarified that the leave cannot be carried forward indefinitely. According to Article 7 of European Union Directive employees on sick leave are only able to take annual leave within a period of 18months of the end of the leave year. Eat held that according to the directive and various case law of the Court of Justice of the European Union (CJEU), regulation 13(9) of the WTR 1998 gives effect to this principle of the directive; workers are only permitted to take leave within 18 months of the end of the leave year in which time the annual leave was accrued.
Ultimately, the EAT held that Mr Plum was entitled under regulation 14 of the WTR 1998 to a payment in lieu of leave that accrued in the leave years from 2012 onwards. He was not entitled to the annual leave accrued in the years from 2010 onwards.
In Summary, carrying over annual leave whilst on long-term sickness:
- Is lawful
- Is not reliant on the employee being unable to take it, mere unwillingness to take the leave accrued is satisfactory (NHS Leeds v Larner)
- Has a limit according to Regulation 13 WTR 1998 of four weeks entitlement
- Is not indefinite – a time limit of 18 months applies
For advice on sickness absence or annual leave contact us on email@example.com or call us on 0114 3032300.