Being off sick is no holiday: update on annual leave accrual during sickness absence

The recent case of Plumb v Duncan Print Group Limited gives further guidance for employers on how annual leave is carried forward for employees on long term sick leave.

It is already the case that where an employee is unable to take annual leave due to sickness absence during the holiday year, then up to four weeks’ statutory leave can be carried forward to the following leave year.

The Plumb case answered two questions arising from this: firstly, whether an employee on sick leave has to show he is unable (rather than just unwilling) to take holiday due to illness for it to be carried forward; and secondly, whether he can carry forward the leave for an unlimited period of time.

Mr Plumb was on sick leave from work following an accident from early 2010 until he was dismissed in 2014. He took paid annual leave in the 2013 holiday year, and also asked to be allowed to take holiday that had accrued but he had been unable to take from 2010 to 2012. The employer refused.  When he was dismissed, he brought a claim for payment of 60 days’ holiday accrued between 2010 and 2012.

Initially, the tribunal decided against the Claimant because he could not show that the reason he had not taken the holiday was because of his medical condition.  However, this decision was overturned on appeal.  It was reiterated by the appeal tribunal that an employee does not have to show that he is physically unable to take annual leave in order to carry leave forward and whilst an employee can choose to take leave during long-term sickness, they can not be forced to do so.

For employers, this means that if an employee is unable or unwilling to take annual leave during a period of sickness absence they should be allowed to take the leave at a later date.

In relation to how long holiday can be carried forward for, it was confirmed in the Plumb case that an employee on long term sick leave cannot carry holiday forward indefinitely and that carry forward may be limited to 18 months from the end of the leave year.  In this case, that meant that Mr Plumb was entitled to payment in lieu of annual leave for 2012 but not for 2010 or 2011.

Employers should check their policies relating to sickness absence and holiday to ensure that they reflect this. 

If you have any questions regarding this or any other legal matter please get in touch by called 0330 123 1229.