How far back can employees seek to claim untaken statutory holiday?
Sadly, nowadays it is not uncommon for employers to have employees in their engagement who are on long term sick leave. Following the case of Plumb v Duncan Print Group, the Employment Appeals Tribunal has now provided clarity about the accrual of statutory holiday during long-term sickness absence and a worker’s ability to carry over unused annual leave into the next leave year.
Mr Plumb was employed as a printer by Duncan Print Group where he had been working since 1987. In April 2010 he suffered an accident at work and was on sick leave from that date until his employment was terminated on 10th February 2014. During that period he did not take any annual leave. Mr Plumb made one request for annual leave in July 2013 when he wrote to his employer asking to take the leave that he had not taken since 2010. The Employer agreed to and did pay salary for annual leave due for the 1st February 2013 to 31st January 2014 leave year.
When Mr Plumb’s employment was terminated, Duncan Print Group agreed to pay for annual leave for the 2013/14 leave year but not in respect of 2010, 2011 or 2012. Mr Duncan subsequently brought a claim for payment in lieu of the untaken leave under the Working Time Regulations 1998 (the Regs) arguing that this right allowed him to do so without any time limitation.
Mr Plumb’s claim only concerned the four weeks’ leave required under the Regs and not any additional leave, as the EAT had previously held that the additional 1.6 weeks’ leave is not eligible for carry forward.
The Regs, which contain the domestic legislation on annual leave, require annual leave to be taken in the leave year in which it is due but there is an exception to this rule for workers that are on sick leave. The case law previous to Mr Plumb's claim stated that the carry over period should be significantly longer than the leave year and that the period of 15 months was suggested.
In the case of Mr Plumb, the EAT found that he should have been able to take the leave within 18 months from the end of the leave year in which the leave accrued. They also found that he was entitled to compensation (for untaken holiday in lieu) from the 1st February 2012 to 31st January 2013 leave year, as annual leave for those years could be taken until 18 months after that date. He was not able to carry over the 2010- 2011 and 2011-2012 years, as they were outside of the 18 month period specified by the EAT.
The EAT also confirmed that a worker’s ability to carry forward leave is not affected as a result of their failing to request leave, or simply being unwilling to take the leave during their sickness absence, which follows the principle established in an earlier Court of Appeal decision.
It is worth noting that the parties have been given leave to appeal to the Court of Appeal, although we do not know whether the parties to the case will do so.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.