There has been yet another case on the issue of annual leave, but this time regarding the right to carry over untaken annual leave into subsequent leave years if an employee is sick.
The current position is that if an employee is on long term sickness absence from work, or they fall sick during a period of planned annual leave, they will continue to accrue annual leave during that period and will be entitled to take it at another time if they are unable or unwilling to take it then. There is provision within the Working Time Regulations 1998 (WTR) restricting employees from carrying over unused annual leave into subsequent leave years, although this does not apply in the abovementioned circumstances where such leave can be carried over. One question that has remained unanswered to any satisfactory degree is whether there is a limit for how long accrued but untaken annual leave can be carried over?
Recent European decisions have indicated that it is possible for limits to be placed on the amount of time untaken leave can be carried over for, ranging between 15 and 18 months from the end of the leave year in which the holiday accrued.
In Plumb v Duncan Print Group Limited the Employment Appeal Tribunal (EAT) considered this issue. Mr Plumb was absent from work between April 2010 and February 2014 when he was dismissed. In July 2013 he requested to take annual leave which had accrued for that leave year (February 2013 to January 2014), which was granted. Upon his dismissal, he claimed that he was entitled to a payment in lieu of all annual leave which had accrued during his period of sickness absence which he had not taken, namely from February 2010 to January 2013.
The original Tribunal found that Mr Plumb was not entitled to the annual leave as he had not shown that he was unable to take it at the relevant time. The EAT overturned this, stating that it was enough for him to show that he was either unable or unwilling to take the leave during sickness absence. The EAT then went on to consider whether limits should be placed on the amount of time untaken leave can be carried over for. The EAT decided that European case law had set a limit of 18 months from the end of the leave year in which the holiday accrued and that this should also apply in the UK. In the present case, therefore, annual leave for the February 2010 to January 2011 and February 2011 to January 2012 leave years did not carry over. However, Mr Plumb was entitled to a payment in lieu in respect of the February 2012 to January 2013 leave year given that he would have had until July 2014 in which to take that.
This decision finally gives some clarity on this issue, although leave to appeal has been granted to both parties. It is important to note that this only relates to the 20 “Directive” annual leave days prescribed by Europe, with the additional 8 days (or 1.6 weeks) provided for by the WTR not carrying over.