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Accrual of Annual leave During Sick Leave

The Employment Appeal Tribunal (EAT) has held in the case of Plumb v Duncan Print Group Ltd that a worker who is off sick and is unable or unwilling to take annual leave, is entitled to carry forward that leave for up to 18 months after the end of leave year in which it was accrued.    

Mr Plumb was on long term sick leave from April 2010 following an accident until February 2014 when his employment was terminated.  He did not request any annual leave until July 2013 where he requested to take all the leave he had not taken in the previous two holiday years.    This was refused and Mr Plumb raised a claim for holiday pay for the leave years of 2010, 2011 and 2012.  The Employment Tribunal dismissed Mr Plumb’s claim but on appeal, the EAT concluded that where a worker is not permitted by contract or legislation to take annual leave during sick leave, the leave can be taken in a subsequent leave year, but, where an employee is permitted to take annual leave during sick leave, the employee may choose to take annual leave during their sick leave or at a later date.    Additionally, the EAT confirmed that annual leave cannot be carried forward indefinitely but should be taken within 18 months of the end of the holiday year in which it was accrued.  Accordingly, Mr Plumb was not entitled to payment in lieu of annual leave for the leave years prior to 2012. 

As a result, employers should note that whilst employees may be permitted to take annual leave during sick leave, they cannot be forced to do so.  Furthermore, employers should be aware that in the absence of a relative agreement (such as a contract of employment), workers will only be entitled to carry over the 4 week’s annual leave afforded to them by the EU Working Time Directive.  The 1.6 weeks “additional annual leave” which is accrued as a result of the UK Working Time Regulations will not be automatically carried forward unless stated in the relevant agreement.

This case therefore highlights the importance of conducting periodical reviews of contracts of employment and employee manuals to ensure that they remain compliant with current employment law. 

For more information please contact Martin Sinclair or Nicola Gray or call 01224 632464.

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