The Employment Appeal Tribunal's (EAT) decision in Plumb v Duncan Print Group Ltd clarifies that Reg 13 (9) of the Working Time Regulations 1998 SI 1998/1833 must be read as permitting a worker to take annual leave within 18 months of the end of the year in which it accrued where he or she was unable or unwilling to take it because of sickness. The EAT also held that the worker is not required to demonstrate that he or she was physically unable to take annual leave by reason of his or her sickness in order to benefit from carry-over.
Facts of the case
The Appellant suffered an accident on 26 April 2010 and as a result was on sick leave until his employment was terminated on 10 February 2014.
The employers leave year ran from 1 February to 31 January, the Appellant did not take annual leave for the 2010, 2011 and 2012 leave years. The Appellant indicated he wished to take annual leave from 5 August 2013 whilst on sick leave. The employer agreed to pay for annual leave for the 2013/14 leave year but not in respect of 2010, 2011 or 2012.
On the termination of his employment the Appellant sought payment in lieu of annual leave for the 2010, 2011 and 2012 leave years. The employment tribunal dismissed the claim as the Appellant could not demonstrate that he was unable, by reason of his medical condition, to take annual leave during the period whilst he was on sick leave.
Two principal issues were considered on appeal.
Firstly, whether an employee on sick leave is required to establish that he was not able to take annual leave by reason of his medical condition or whether it is sufficient that he was absent on sick leave and did not choose to take annual leave when on sick leave.
Secondly, whether there is any limitation period for which an employee may carry forward annual leave accrued in one year to later years.
In relation to the first issue, the EAT held that the Tribunal had erred in concluding that an employee who was on sick leave needed to demonstrate that he was unable, by reason of his medical condition, to take annual leave. The EAT clarified that Article 7 of the Directive requires that an employee who is on sick leave, and who would be permitted to take paid annual leave during that sick leave, is not required to take annual leave but may choose to do so. Therefore, the EAT concluded that where, as in this case, the Appellant did not wish to take annual leave during periods of sick leave, he was entitled to take the annual leave at a later date.
In relation to the second issue, the EAT held that EU law does not confer an unlimited right to carry over periods of annual leave to subsequent years. The EAT, in considering Regulation 13(9), held that the Directive, at most, only requires that employees on sick leave are able to take annual leave within a period of 18 months of the end of the leave year in respect of which the annual leave arises.
Consequently, the EAT concluded that a worker is permitted to take annual leave within 18 months of the end of the leave year in which it accrued where the worker was unable or unwilling to take annual leave because he was on sick leave and, as a consequence, did not exercise his right to annual leave.